IV.CUSTODIAL AND NON-CUSTODIAL
MEASURES IN THE CASE OF CHILDREN AND ADOLESCENTS HELD RESPONSIBLE FOR
VIOLATING CRIMINAL LAWS

307.A state’s response when its
juvenile justice system holds a child responsible for a violation of the
law must be respectful of the child’s specific rights and the specific
protections to which the child is entitled by virtue of his or her age.

308.The international standards
on the subject provide that States should order confinement only as a
last resort and have alternatives to confinement available. The
juvenile justice system must also give special consideration to the
proportionality and duration of a sentence, whether or not it involves
confinement. Furthermore, sentences that constitute cruel and inhuman
treatment, particularly those involving corporal punishment, are
inadmissible under international human rights law.

309.In this chapter of the
report, the Commission will examine the measures that States can,
without violating international law, apply to children who have been
found responsible for violating criminal laws. The Commission will
begin with those measures that States can order in lieu of custodial
measures, and then examine the deprivation of liberty of children who
violate the law.

310.The right to personal
liberty involves certain important qualifiers in the case of children
under the age of 18. As the Inter-American Court has held, the content
of the right to personal liberty in the case of children cannot be
separated from the best interests of the child, which is why special
measures must be taken to protect them, given their vulnerability.[242]
The measures that replace, or are alternatives to, the deprivation of
liberty are a means to safeguard the rights of children who have
violated criminal law.

311.Thus, in order to be in
compliance with the principle of last resort, which imposes a
restriction of liberty on children as an exception, States have an
obligation to establish alternatives to custodial measures as penalties
for children found guilty of violating criminal laws. That obligation
is clearly set out in Article 40(4) of the Convention on the Rights of
the Child, which provides that:

A variety of
dispositions, such as care, guidance and supervision orders; counseling;
probation; foster care; education and vocational training programs and
other alternatives to institutional care shall be available to ensure
that children are dealt with in a manner appropriate to their well-being
and proportionate both to their circumstances and the offence.

312.The Committee on the Rights
of the Child has observed that:

An effective package
of alternatives must be available (see chapter IV, section B, above),
for the States parties to realize their obligation under Article 37 (b)
of CRC to use deprivation of liberty only as a measure of last resort[243].

313.Furthermore, the use of
alternatives to the deprivation of liberty, in the case of juvenile
offenders not only adequately ensures their right to personal liberty,
but also serves to protect the children’s rights to life, to physical
integrity, to development, to family life and others. The Commission
highlights that in order to avoid the negative consequences of the
deprivation of liberty, alternatives to it must endeavor to make it
easier for juvenile offenders to continue their education, maintain and
even strengthen their family ties, while supporting those consigned to
the state’s care and connecting the juvenile offender to community
resources to facilitate his or her re-assimilation into community life.

314.At the same time, the
Commission observes that some alternative measures could lead to
violations of the principles of legality, proportionality of the
sentence and minimum intervention, as well as jeopardize the child’s
right to due process. Therefore, the way in which these measures are
applied in the region needs to be examined carefully. Such measures
must meet the same general requirements that apply to alternatives to
adjudication in juvenile court, such as the child’s right to be heard,
adequate judicial oversight of the measures, and limits on judicial
discretion.

315.From the information
compiled for this report, the Commission observes that there are
alternatives to the deprivation of liberty everywhere in the region,
although the means and manner by which they are applied vary
significantly from one country to the next. The non-custodial measures
most often used include the following: (a) probation programs; (b)
warnings and reprimands; (c) rules of conduct; (d) community programs;
(e) individualized diversion programs, and (f) penalties aimed at
restorative justice.

316.The probation or assisted
release programs tend to be those most often used in the Latin American
countries. Generally, the assisted release programs require the child
to attend a socio-educational program; while the probation programs tend
to require that a professional social worker has regular contact with
the child, and with his or her family and community. The non-custodial
measures also tend to include warnings by the judge as to the harm done
and the consequences to be faced face if the child does not improve his
or her behavior, to reprimands to warn the child not to repeat the
unlawful conduct. Other types of penalties tend to involve rules of
conduct or behavior, such as prohibiting the child from going to certain
places or events, prohibiting the child from driving motor vehicles, and
others. Non-custodial measures also include punishments such as
requiring the child to attend counseling and to join socio-educational
programs. The laws also routinely provide for penalties aimed at
restorative justice, such as providing community services, the
obligation to repair the damage done or harm caused, or the obligation
to provide the victim with some form of satisfaction.

317.In some English-speaking
countries of the hemisphere, non-custodial measures tend to be of five
types. The first is that before the child can be exonerated -- the
child must stay clear of any criminal activities during a certain
period. The second is that the child must pay a fine to the court as a
result of the violations of the law committed. A third type of
non-custodial measure is to send the child to live with a “fit person”,
which may be an individual or an institution. The fourth is to require
that the child participate in some type of program to redress the wrong
that the violation of the law has caused. The fifth is to require that
the child participate in educational or vocational programs or attend
therapy.

318.Although these non-custodial
measures are available, the Commission is troubled by the fact that the
measure most often used in the case of juvenile offenders continues to
be incarceration. Non-custodial measures are not used more often because
the community programs needed for the children to perform the
non-custodial sentences are not available, particularly in rural areas;
the funding for the non-custodial programs is not adequate; the
authorities responsible for children in conflict with the law do not
coordinate with each other; and the mechanisms for supervising
compliance with these measures are few.

319.The Commission also observes
that judges sometimes feel they have the authority to exercise greater
discretion when ordering non-custodial measures. In such cases, the
alternative, non-custodial measures can end up becoming a form of social
control over the juvenile offender, without respecting his or her right
to due process. To avoid this situation, the Tokyo Rules establish
certain legal safeguards that are to be observed when selecting and
implementing non-custodial measures in the case of juvenile offenders.
Those rules provide that the non-custodial measures must be
proportionate to the seriousness of the offence and the offender’s
history, and reflect the principles established for sentencing. Any
form of medical or psychological experimentation on juvenile offenders
is prohibited, as are measures that pose some unnecessary risk of
physical or mental harm. According to these rules, the decision as to
whether to order a non-custodial measure must be subject to review by a
judicial or other competent, independent authority, at the offender’s
request, and his or her dignity is to be respected at all times.[244]

320.In the Commission’s view,
some non-custodial measures may be inappropriate, given the States’
obligations under international human rights law. For example, a fine
would not be an appropriate sentence for children and adolescents below
the minimum compulsory education age under international standards. The
Commission considers that ordering fines may have the effect of forcing
children to engage in work that, by international standards, is
inappropriate for their age. The Commission considers that ordering
fines may also have the effect of forcing children to engage in work
that, despite their youth, exposes them to the risk of violence and
exploitation. Furthermore, the fines are generally paid by the parents,
which is a violation of Article 5(3) of the American Convention,
according to which punishment
shall not be extended to any person other than the criminal.

321.The Commission also points
out that particular care must be taken when applying measures that
involve some form of restorative justice, or a measure requiring the
child to compensate the victims for the damages that his or her
violation of the law caused. Requiring children to return stolen
property to its owners might be one non-custodial measure; however,
requiring that the child financially compensate the victims, even if
only a token amount, could have the effect of forcing the child to seek
work in order to earn the money. This could end up being a violation of
the prohibition of child labor and expose the child to needless risk.

322.As for the non-custodial
measures that require the child to live with a “fit person,” the
Commission believes that a distinction must be made between the child’s
obligation to live with a responsible relative or adult, and the
practice of referring to institutions as “fit persons”. The Commission
has learned that this non-custodial measure has sometimes been
implemented in practice by sending the juvenile offender to a
correctional facility, which is a form of deprivation of liberty and
hence cannot be regarded as an alternative, non-custodial measure.

323.The Commission is also
concerned by the fact that the non-custodial measure ordered for the
child may involve a broad spectrum of conditions and obligations, to the
point that many children end up facing measures that are much more
intrusive than the severity of their offense warrants, in violation of
the principle of the proportionality of the sentence and the principle
of minimum intervention. The Commission agrees with the Committee on the
Rights of the Child, which has observed that States can take measures to
suspend the proceedings in the juvenile justice system, which would be
deemed terminated if the measure intended to suspend the process is
carried out in a satisfactory manner.[245]
However, it is troubled by cases in which the non-custodial measure was
ordered in a final judgment but the cases are nonetheless not
definitively closed and the child has to appear in court again and is
charged with failure to comply with a valid court order, which in many
cases would mean much more severe sentences, possibly even
incarceration. The Commission points out that failure to comply with
conditions attached to measures that, if satisfied, could demonstrate
rehabilitation and thus suspend juvenile justice proceedings, ought not
to result in more severe penalties than those that the original
violation carries. They should never be equivalent to the penalties
imposed on adult offenders.

324.As for orders to perform
community service in lieu of incarceration of juvenile offenders, the
Commission considers that these might well be a suitable non-custodial
measure, provided certain requirements are met.

325.First, regardless of whether
these programs are designed for the general population or are
specifically designed for children given non-custodial sentences, and
whether or not these programs are run by government or civil society
organizations, they must be strictly supervised to prevent any
exploitation of the child. Second, the IACHR emphasizes that a child’s
participation in community service programs must, under no
circumstances, affect his or her schooling, health or physical or
psychological well-being. The educational or therapeutic programs
sometimes require the family’s participation. Third, it should be made
very clear that the actions or omissions of third parties ought not to
affect the determination as to whether or not the child has complied
with the non-custodial measures. In other words, the parents’
participation in family therapy must be voluntary and their
non-participation ought not to influence the evaluation of the child’s
fulfillment of the non-custodial measure ordered.

326.If the orders to participate
in community service programs are properly supervised, do not infringe
upon the child’s rights and do not require third-party involvement, the
Commission believes that they are a positive and viable alternative to
the deprivation of liberty, especially when the orders to attend
educational, vocational or specific therapeutic programs are intended to
effect positive changes in the juvenile offender’s conduct. The
Commission also believes that these programs can be an effective way to
reduce the stigmatization that juvenile offenders suffer, thereby
facilitating their re-assimilation into the community.

327.The Commission therefore
takes a positive view regarding the laws in many countries of the
region, particularly in Latin America, providing for community service
orders. For example, according to the information received, Article 11
of Chile’s Juvenile Criminal Responsibility Act provides that “a
sentence of community service consists of performance of unremunerated
activities for the sake of the community to benefit the needy.”
Guatemala’s Comprehensive Child and Adolescent Protection Act provides
for a sentence of community service, which shall consist of
unremunerated services for the general welfare in public and private
assistance agencies, such as hospitals, schools, national parks and
other similar establishments. Peru’s Child and Adolescent Code
provides for a sentence of community service, which means performing
tasks appropriate to an adolescent’s aptitude, without harming his or
her health, schooling or work, and under the supervision of the
technical staff of the Office of the Operations Manager of the
Judiciary’s Juvenile Facilities, and in coordination with local
governments. In the Dominican Republic, one finds the same kind of
regulation of community service, where the Code for the System of
Protection and Fundamental Rights of Children and Adolescents expressly
states that these measures are not to affect the child’s health or
physical and psychological well-being.

328.While the Commission has
expressed serious reservations regarding some non-custodial measures,
measures of this type are nonetheless an integral part of a juvenile
justice system that is consistent with the principles and obligations
established in international human rights law. The Commission is
recommending that the States amend their laws to make it mandatory to
apply, as a first option, a wide range of non-custodial measures as
alternatives to custodial measures. The Commission is urging the States
to enforce in practice those provisions that allow non-custodial
measures to be used in place of the sanction of imprisonment. The
Commission also recalls that the adoption of laws incorporating
alternative non-custodial measures must be coupled with adequate funding
for programs in which children can participate as an alternative to
imprisonment. Furthermore, the guarantees of due process must be
observed in all cases in which alternative measures are used, especially
those that are restorative in nature.

329.States are also encouraged
to enlist members of the community to help design, support and monitor
the non-custodial sentencing, as this can improve the chances that the
conditions are met, which in turn will encourage the courts to rely more
heavily on non-custodial measures. Having members of the community
participate in devising non-custodial measures and then supervising
them, combined with the introduction of restorative justice processes,
can help bring about a reconciliation between victims, offenders and
members of the community and hasten the child’s re-assimilation into the
community.

330.The Commission recommends
that States ensure the programs that make non-custodial sentences
possible are available in the communities in which the sentenced
children live, and are not confined only to the major cities. The
Commission appreciates a number of positive experiences in this regard.
In Costa Rica, for example, a high percentage of the penalties imposed
are non-custodial measures;[246]
in Brazil, a policy guideline has been adopted to the effect that
children’s needs are best addressed at the municipal level, and a new
management model has been introduced that coordinates nongovernmental
organizations and public authorities.[247]

331.Finally, although
implementation of non-custodial measures as an alternative to
incarceration is an obligation incumbent upon the States under
international law, the Commission must also point out that it has
received reports to the effect that the non-custodial alternatives to
the deprivation of liberty are less costly than incarceration, and more
effective in accomplishing the ultimate goal of a juvenile justice
system, which is to integrate the children into society as constructive
members, and in the process improve public safety by reducing the
incidence of repeat offending.[248]

332.Custodial measures should be
used once it has been shown and proven that non-custodial measures are
inadvisable in a given case and after a careful review, taking into
account the principles of legality, last resort and proportionality of
the sentence, as well as other relevant considerations.[249]

333.The IACHR has defined
deprivation of liberty as:

Any form of detention,
imprisonment, institutionalization, or custody of a person in a public
or private institution which that person is not permitted to leave at
will, by order of or under de facto control of a judicial,
administrative or any other authority, for reasons of humanitarian
assistance, treatment, guardianship, protection, or because of crimes or
legal offenses. This category of persons includes not only those
deprived of their liberty because of crimes or infringements or non
compliance with the law, whether they are accused or convicted, but also
those persons who are under the custody and supervision of certain
institutions, such as: psychiatric hospitals and other establishments
for persons with physical, mental, or sensory disabilities; institutions
for children and the elderly; centers for migrants, refugees, asylum or
refugee status seekers, stateless and undocumented persons; and any
other similar institution the purpose of which is to deprive persons of
their liberty[250].

334.Similarly, Rule 11(b) of the
Havana Rules has defined deprivation of liberty as any form of detention
or imprisonment, or the placement of a person in a public or private
custodial setting from which the child is not permitted to leave at
will, by order of any judicial, administrative or other public
authority.

335.The definitions are
important to bear in mind since, where children are concerned, the
member States and their laws frequently avoid the use of words like
jails, deprivation of liberty, confinement or cells, and replace these
words with euphemisms like homes, comprehensive treatment centers,
internments, dormitories, shelters, and others. The principles and
standards discussed in this report apply to all institutions, both
public and private, that are used to house children under the age of 18
who have violated a criminal law.

336.In this chapter, the
Commission will examine the principles that must guide and delimit the
use of penalties of incarceration, which, in the case of children,
should be used only as a last resort, and must be proportional to the
crime, last as short a time as possible and be subject to periodic
review. Care must also be taken to ensure that the children deprived of
their liberty are allowed contact with their families and communities.

337.The Commission will
carefully examine the classification criteria that apply to children who
are deprived of their liberty and will analyze the States’ obligation to
guarantee that children who are subject to these types of sanctions are
able to exercise their rights. The Commission will make specific
reference to the detention conditions and the need to prevent,
investigate and punish any form of institutional violence. Finally, the
Commission will look at some of the measures that States must take once
children have been deprived of their liberty in order to ensure that
their rights are protected and that they are able to rejoin their
community.

338.The criteria that the
Commission explained in the preceding paragraphs concerning the
principles that must be observed when applying custodial precautionary
measures also apply to the custodial measures ordered when a child is
sentenced for violating the law.

339.Thus, in order to be
legitimate, any sentence involving deprivation of liberty must, when
applied to a child held responsible for violating the law, comply with
the principles of last resort and the proportionality of the sentence;
it must be for the shortest time possible; furthermore, children
sentenced to deprivation of liberty must enjoy all the rights and
protections that their age, gender and individual characteristics
dictate. The Commission urges the States to unreservedly respect these
principles and the rights of the child when he or she is incarcerated
for violating the law, as every system of justice must be
comprehensive, restorative and centered on the rehabilitation of the
child or adolescent offender and their reintegration into the community.[251]

340.Article 37(b) of the
Convention on the Rights of the Child reads as follows:

The arrest, detention
or imprisonment of a child shall be in conformity with the law and shall
be used only as a measure of last resort and for the shortest
appropriate period of time.

341.The principle of last resort
is also guaranteed by other international norms on the subject,
particularly Rule 19 of the Beijing Rules, and Rule 2 of the Havana
Rules.

342.The Commission, for its
part, has observed that when applying measures that deprive the child of
liberty, one consideration has to be that deprivation of liberty is the
ultima ratio, and therefore other types of measures must be
preferred, without resorting to the judiciary system, whenever this is
adequate.[252]

343.The IACHR has also indicated
that:

... international
human rights law favors reserving those penalties that most severely
restrict a minor's fundamental rights for only the severest of crimes.
Hence, even in the case of criminalized offenses, laws protecting the
child must advocate some form of punishment other than imprisonment or
deprivation of liberty[253].

344.Observance of the principle
of last resort requires prioritization and the availability of
non-custodial sentences.[254]

345.Furthermore, the principle
of last resort serves not only to protect children’s right to liberty,
but also their rights to life, their right to survival and development,
and their right to a family life. In reference to Article 6 of the
Convention on the Rights of the Child, which protects the right to life
and the right to survival and development, the Committee on the Rights
of the Child has observed that “the use of deprivation of liberty has
very negative consequences for the child’s harmonious development and
seriously hampers his/her reintegration in society.”[255]

346.As mentioned in the chapter
on non-custodial alternatives to the deprivation of liberty, almost
everywhere in the region there are provisions allowing judges to apply
non-custodial measures in lieu of a sentence that would deprive the
child of his or her liberty. Nevertheless, those measures are not
uniformly applied, and judges continue to opt in favor of sentences of
incarceration as the preferred sentence for juvenile offenders, in
violation of the standards of international law. Furthermore, due
process and other children’s rights are often violated when the
non-custodial measures are ordered. The States of the hemisphere do not
have the funds to finance programs that allow implementation of
non-custodial measures; that lack of funding is one of the principal
obstacles to guaranteeing the right of juvenile offenders that prison
will be used only as a last resort.

347.The Commission observes that
a number of States have established minimum ages at which the juvenile
justice system can deprive children of their liberty. For example,
Mexico’s Constitution provides that at both the federal and state level,
incarceration will be used only as an extreme measure and for the
shortest appropriate period of time, and can only be used in the case of
adolescents over the age of 14 convicted of very serious, antisocial
behavior. In Nicaragua, children and adolescents between the ages of 13
and 15 cannot be sentenced to imprisonment.

348.Some States have established
age brackets, such that the maximum custodial sentence that can be
administered in the case of children and adolescents subject to the
juvenile justice system is age-based. For example, in Venezuela, the
maximum custodial sentence that children over the age of 12 but under 14
can receive is two years; whereas children of 14 but under 18 can be
deprived of their liberty for up to 5 years. In Guatemala, children
between 13 and 15 years of age can be deprived of their liberty for up
to two years, while those between 15 and 18 can be deprived of liberty
for up to six years. In Nicaragua, only those over 15 but under 18 can
be deprived of their liberty for up to 6 years.

349.The Commission reiterates
the recommendations made in the chapter on non-custodial measures, and
urge the States to spare no effort to make the principle of last resort
a reality, as it must be one of the underlying principles of every
juvenile justice system and should be administered as well in the case
of children found responsible for violating criminal laws. The
Commission is also recommending that regulations be adopted to limit the
degree of discretion that judges can exercise in administering criminal
punishments and custodial sentences, based on the principle of last
resort. This can be accomplished either by regulating the minimum ages
at which children can be deprived of their liberty or establishing age
brackets that distinguish the maximum custodial sentence a child can
receive according to his or her age, provided the maximum custodial
terms are very short.

350.Under international rules
and standards, the response to children found responsible for violating
criminal laws must respect the principle of proportionality of the
sentence.[256]
This means that the punitive reaction must be in proportion to the
seriousness of the offense; in other words, the lesser the offense, the
lesser the penalty should be; the lesser the role that the person played
in the commission of the offense, the lesser the sentence that he or she
should receive. Under Article 40(4) of the Convention on the Rights of
the Child, the proportionality of the sentence is related to the child’s
circumstances and the offense; but not to the educational needs.

351.Thus, the penalty for a
juvenile offender must consider the proportionality between the conduct
and the degree of harm that the offense caused with respect to protected
legal rights. Furthermore, the measure must be selected in accordance
with the principle of minimum intervention.[257]
Rule 5(1) of the Beijing Rules provides that:

The juvenile justice
system shall emphasize the well-being of the juvenile and shall ensure
that any reaction to juvenile offenders shall always be in proportion to
the circumstances of both the offenders and the offence.

352.Both the Inter-American
Court[258]
and the Committee on the Rights of the Child have addressed this
principle. The Committee has observed that:

...the reaction to an offence should
always be in proportion not only to the circumstances and the gravity of
the offence, but also to the age, lesser culpability, circumstances and
needs of the child, as well as to the various and particularly long-term
needs of the society. A strictly punitive approach is not in accordance
with the leading principles for juvenile justice spelled out in Article
40 (1) of CRC ...[259].

353.Many countries of the
hemisphere have laws upholding the principle of the proportionality of
the sentence. By way of example, Article 26 of Costa Rica’s Juvenile
Criminal Justice Act clearly states that the sentences imposed in the
proceedings shall be reasonable and proportional to the offense or crime
committed. Article 27 of that law prohibits open-ended sentencing.

354.Nevertheless, even though
such provisions are common in the hemisphere, the Commission has
received information to the effect that, in practice, States do not
observe this principle when sentencing juvenile offenders. In fact,
open-ended sentences are still being handed out in some places in the
hemisphere. The Commission was informed, for example, that in Suriname,
the courts do not necessarily specify how long the child is to remain in
custodial care; generally, children remain in prison until they turn 21.[260]

355.The juvenile justice
system’s response is often based on a juvenile offender’s personal or
family circumstances rather than the offense itself. For example, the
Commission was told that in Brazil, a considerable amount of discretion
is exercised in proceedings conducted against juvenile offenders, such
that the sentences seem to be the result of a friendly conversation
between judges, advocates and defense attorneys. The system produces
entirely different outcomes for similar offenses.[261]

356.Contrary to the principle of
proportionality of the sentence and the principle of equality and
non-discrimination, there are too many cases in which the punitive
response to the conduct of juvenile offenders is harsher than it is in
the case of adults who have committed a crime. For example, the
Commission has received information indicating that in the United
States, children are prosecuted with adults for the same crime, and yet
the children can receive tougher sentences than their adult
co-defendants.[262]

357.The Commission was disturbed
to learn that in many States in the United States in which children can
be tried in adult court, judges are not allowed to consider the child’s
age when deciding the length of his or her sentence. The mandatory
sentencing guidelines are particularly problematic in the case of
children. According to the information concerning the United States, a
homicide conviction in South Carolina carries a mandatory minimum
sentence of 30 years without the possibility of parole.[263]
In California, murder with special circumstances carries a presumptive
sentence of life in prison, with no possibility of parole, except where
there is good reason to replace the life sentence with a sentence of 25
years.[264]
In some States, gang murder is a circumstance that creates a presumptive
sentence of life in prison without the possibility of parole.[265]
In addition, in some States within the United States, children who do
not commit the murder themselves but are instigators or accomplices –for
example, if they drive the car in which the escape was made- can also
face life sentences without the possibility of parole.[266]

358.The Commission was also
struck by information it received to the effect that in some countries
of the Caribbean, children are sentenced to deprivation of liberty in an
institution for a specific period of time, irrespective of what law they
have violated. The idea is that they are participating in a
rehabilitation program and must spend a certain amount of time in the
program if it is to have any effect. According to the information that
the Commission obtained during its visits, in Guyana, children are
sentenced to time in the New Opportunities Corps, for not less than one
year and no more than three; in Belize, children are sentenced to the
Juvenile Hostel and to the National Youth Cadets to serve for two years;
in Trinidad and Tobago, children are sentenced to the Youth Training
Center for three years if the sentence is imposed by a magistrates’
court, and four years if sentenced is imposed by a superior court.

359.The IACHR encourages States
to enforce laws allowing the state’s response to offenses by children to
be in proportion to the circumstances under which the offense was
committed, the seriousness of the offense, the child’s age and needs and
other considerations.

360.When, in observance of the
principles of last resort and the proportionality of the sentence, a
State decides to sentence a child to some form of deprivation of liberty
for violation of a criminal law, it must also make certain that the
measure has an upper limit, which should be reasonably short.

361.Article 37 of the Convention
on the Rights of the Child expressly prohibits capital punishment and
life imprisonment without parole:

...Neither capital
punishment nor life imprisonment without possibility of release shall be
imposed for offences committed by persons below eighteen years of age.

362.The CRC thus prohibits
capital punishment. The same is not true of life imprisonment, which is
not prohibited outright, but can be used provided the possibility of
release exists. As for the scope of the possibility of release, the
Committee on the Rights of the Child has interpreted this provision as
follows: “the possibility of release should be realistic and regularly
considered”[267].

363.The foregoing
notwithstanding, the IACHR observes that the trend today is to eliminate
the possibility of life sentences for children and adolescents who
infringe the law. In the Commission’s view, that trend is very much in
keeping with the States’ obligation under the American Convention and
the American Declaration, which is to afford children special
protection. In its General Comment on children’s rights in juvenile
justice, when interpreting the CRC, the Committee on the Rights of the
Child recommends that all forms of life imprisonment be abolished
inasmuch as “life imprisonment of a child will make it very difficult,
if not impossible, to achieve the aims of juvenile justice despite the
possibility of release.”[268]
For the Commission, children and adolescents must be treated in a manner
that serves to preserve and cultivate their dignity, the objectives of
juvenile justice and the State’s special obligations to respect and
guarantee their rights, so that all forms of corporal punishment, or any
punishment that violates their personal integrity and thwarts their
reintegration as constructive members of society, are to be eliminated.

364.The IACHR concurs that a
sentence of life imprisonment for children under the age of 18 makes it
impossible to achieve the purposes that punishment under the juvenile
justice system is intended to serve, such as the child’s rehabilitation
and his or her reintegration into society. It echoes the Committee on
the Rights of the Child when it recommended to the States parties that
they eliminate all forms of life imprisonment in the case of offenders
under the age of 18. In the Commission’s view, the possibility, in law,
of release is not per se sufficient to make a sentence of life
imprisonment compatible with the international obligations the States
have undertaken to afford children special protection, nor does it serve
the purpose of punishment under the American Convention. Either way, the
question of whether there are opportunities for periodic review, and
whether the principles governing the state’s punitive authority
vis-à-vis children are being observed, must be evaluated.

365.Even so, the Commission has
received information indicating that in some States of the Americas,
children can still be sentenced to death. From what the Commission has
been told, a law is still in force in Saint Vincent and the Grenadines
that prohibits capital punishment in the case of minors under the age of
16; in other words, capital punishment is a possibility in the case of
minors between the ages of 16 and 18.[269]

366.Indeed, the sentence of life
imprisonment is common in some States of the hemisphere. Through its
system of cases and petitions, the Commission has learned of the
situation in Argentina,[270]
where Decree-Law 22,278 sets up a system in which the rules that apply
to adults also apply to juvenile offenders for purposes of sentencing
and the possibility of release. Under that law, children can face the
maximum sentences allowed under Article 80 of the Argentine Penal Code,
specifically, life imprisonment and confinement. The Commission observes
that while Decree-Law 22,278 provides that juvenile offenders are to
begin to serve their sentence once they turn 18 years of age, the
States’ obligation to afford special measures where juvenile justice is
concerned is not based on the age at which the sentence will be served,
but rather on the age at which the crime was committed. Therefore,
based on the objectives and principles of juvenile justice, the state’s
response to such violations must be different from its response to
violations committed by adults. The Commission is concerned that under
these provisions, children who were found guilty of violating criminal
laws before attaining adulthood are treated as adults and sentenced to
life in prison, which is incompatible with the purposes that penalties
under the juvenile justice system are intended to serve.

367.Similarly, according to the
information the Commission has received, more than 2,500 persons are
serving life sentences in the United States for crimes committed when
they were still under 18 years of age. Also, the laws in Belize permit a
sentence of life in prison without the possibility of parole, for crimes
committed by persons under the age of 18.[271]
In Saint Lucia,[272]
Saint Vincent and the Grenadines[273]
and Jamaica,[274]
a person who has committed a crime while still a minor can be sentenced
to life imprisonment. In Antigua and Barbuda,[275]
the law does not specify how long a person who has committed murder as a
minor can be held, which means that confinement for life is possible.

368.The Commission was concerned
at reports it received to the effect that in a number of Caribbean
countries, children can be held for an indefinite period, and that
review is not required. This can amount to a sentence of life
imprisonment without the possibility of parole. For example, the
Commission was told that in Barbados[276]
and Dominica,[277]
a child can be locked up for an indefinite period of time, at the
discretion of the Governor-General and President, respectively.

369.The Commission also notes
that while a number of States in the hemisphere prohibit life
imprisonment, a number of States also have laws that prescribe very long
maximum sentences. For example, according to the information the
Commission received, the maximum sentence in Costa Rica is 15 years; in
Chile 10 years; 8 years in Honduras, Paraguay and Colombia; and 7 years
in El Salvador. However, according to information the Commission has
obtained, under El Salvador’s 'Anti-Mara' Law, the maximum sentence
could be extended for up to 20 years.[278]
Similarly, under Peru’s Law to Counter Aggravated Terrorism, children
between 16 and 18 years of age can be sentenced to no less than 25
years. In the Commission’s view, this type of legal solution is
incompatible with the principle of the brevity of the deprivation of
liberty applicable to minors.

370.In the case of minors,
prison sentences that are excessively long violate the provision of the
Convention on the Rights of the Child under which imprisonment is to be
for the shortest appropriate period possible. They also violate the
States’ obligations under Article 19 of the American Convention and
Article VII of the American Declaration, which recognize children’s
rights to measures of special protection. Such sentences also defeat the
purpose of penalties in juvenile justice.

371.The Commission urges the
States to establish, by law, the maximum duration of the sentences that
minors held responsible for violating the law can receive, and to ensure
that the length of the sentence is suited to a child’s age and
development, recognizing that the adverse effects of incarceration are
even more pronounced in children. The Commission also recommends that
the States abolish the death penalty and life sentences for minors.

372.The principle requiring that
deprivation of liberty be a measure of last resort and for the shortest
period of time possible requires that States introduce mechanisms to
make periodic review of custodial sentences possible in the case of
juvenile offenders. If circumstances have changed and the child’s
confinement is no longer necessary, States have a duty to release them,
even when they have not served out the full term of the custodial
measure ordered in each case. States must therefore ensure that their
laws provide for early release programs.

373.Interpreting Article 25 of
the CRC, which provides for periodic review of the child’s treatment and
other circumstances related to his or her deprivation of liberty, the
Committee on the Rights of the Child has emphatically stated that “the
possibility of release should be realistic and regularly considered.”[279]

374.Rule 28(1) of the Beijing
Rules provides that:

Conditional release
from an institution shall be used by the appropriate authority to the
greatest possible extent, and shall be granted at the earliest possible
time.

375.Some States in the region
have made provision for early release programs. From the information it
obtained, the Commission has learned that these programs are of various
types, which include: permits that allow the child to return to his or
her family and community on certain days; regular time-off regimes
(every weekend, for example); replacement of the custodial measure with
other measures, such as semi-release or non-custodial measures.

376.In Uruguay, for example, the
periodic review involves an assessment of whether the goals of the
custodial measure or any other penalty have been accomplished. Article
94 of Uruguay’s Child and Adolescent Statute provides that an order is
to be issued as soon as it is established that the socio-educational
purpose has been accomplished. The applications to replace, modify or
terminate the measures will give rise to a hearing at which the child,
his or her legal representatives, defense counsel and the Public
Prosecutor’s Office will participate.

377.In the case of Brazil, where
a child can be deprived of his or her liberty for no more than three
years –doubtless one of best pieces of legislation in terms of
compliance with the brevity principle-, Article 121 of the Child and
Adolescent Statute also requires that the custodial measure be reviewed
every six months until the child reaches the age at which he or she must
be released, which is 21.

378.Article 371 of Ecuador’s
Child and Adolescent Statute provides that the judge can modify or
replace the sentence imposed, if the report prepared by the team of
experts from the institution in which the child is serving his or her
sentence is favorable, and any of the following circumstances is
present: a) the child has, by the time he or she turns 18, served half
his or her sentence; b) the Director of the custodial facility for
juvenile offenders requests it; and c) every six months, if the child or
his or her representative so request.

379.All the Central American
countries allow a custodial measure to be replaced by a non-custodial
measure; a number of States allow conditional execution of a custodial
sentence, as in the case of Costa Rica,[280]
Guatemala,[281]
and Panama.[282]

380.In Canada, a child’s
custodial sentence is periodically reviewed to determine whether he or
she should be released earlier than stipulated in the sentence. Under
Canadian law, a portion of a child’s sentence, normally one third, must
be served in the community. The objective of this law is to ensure a
period of transition between the time the child leaves the institution
and is sent back to his or her community, which also gives the parole
department at least one third the time of the sentence to assist the
child in rejoining his or her community. Planning for the child’s
release begins once the child is subject to the custodial measure, and
plans for his or her re-assimilation are tailored to the specific
child’s needs, with a social worker who specializes in juvenile parole
and who will also be responsible for following up on the plan’s
implementation.[283]

381.Belize, too, has an early
release program. Children incarcerated in Belize’s central prison, run
by the Kolbe Foundation, can be paroled once they have served one third
of their sentence. They are required to appear before a Parole Board,
which will decide whether they should be granted parole. Once they have
served two thirds of their sentence, they can apply for release.

382.Other types of early release
programs in the English-speaking countries of the region include parole,
which means that the children must meet certain conditions if they want
to be released early. As a rule, parole officers oversee compliance
with the parole conditions. Nevertheless, from the information the
Commission has obtained, it appears that not many children are
benefitting from the parole programs. In Suriname, for example,
officials at the Santo Boma prison told the Commission during its visit
that, in 2007, 11 children were released on parole; in 2008 that figure
was 8.

383.The IACHR observes with
concern that the periodic review of the custodial measure does not occur
in all States of the region; in some States, there is no possibility of
early release. The Commission observes that in those States that do
allow early release, the conditions for it are often too severe. These
conditions are set by the court that orders early release, without
regard for the principles of the proportionality of the sentence and the
principle of minimum intervention.

384.As happens in the case of
the diversion programs and the alternative, non-custodial measures, when
conditions are imposed for a child’s early release, they must not be
overly intrusive; instead they must be in proportion to the offense for
which the child was found guilty. The alternative, non-custodial measure
ought not to represent a temporary extension of the socio-punitive
control over the child. It is therefore unacceptable for the
non-custodial measure that replaces the custodial measure to effectively
prolong the time of the sentence the child was originally given for an
offense.

385.The Commission also observes
that in States where early release is allowed, the latter is often
contingent upon an application from the parents of the child being
held. For example, during the visits the Commission made in preparation
for this report, it learned that in Guyana, parents can apply to the
Minister of the Interior for their child’s early release, but few
parents know this and no efforts are made to inform them of this rule.

386.In the Commission’s view,
early release must be based on a procedure established in the respective
law and ought not to depend on a specific request, whether from the
child or his or her parents or representatives, or defense counsel. All
children subject to custodial measures must have representation to
ensure that they are kept fully informed of the opportunities for early
release and that those opportunities are used to good effect.

387.The Commission emphasizes
how vital it is that States establish mechanisms through which children
who apply for early release, and even parole, are able to receive
assistance from an officer who specializes in facilitating the child’s
re-entry into the community.[284]
The Commission will discuss this point at greater length in the section
devoted to the measures subsequent to confinement.

388.The IACHR again points out
that it is the obligation of the States to set up mechanisms by which
the custodial measures that children under the age of 18 are serving can
be reviewed, so that they can apply for early release programs when
there is no reason why their incarceration should continue.

389.In application of the
principle of last resort, States must ensure that children will not be
separated from their families except in exceptional circumstances. As
the Inter-American Court has held:

The child must remain
in his or her household, unless there are determining reasons, based on
the child’s best interests, to decide to separate him or her from the
family. In any case, separation must be exceptional and, preferably,
temporary…The State, given its responsibility for the common weal, must
likewise safeguard the prevailing role of the family in protection of
the child; and it must also provide assistance to the family by public
authorities, by adopting measures that promote family unity[285].

390.For a child, contact with
family and community is especially important when the time comes to
ensure that a child, who has been subjected to some custodial measure,
will be successfully re-assimilated into society. Therefore, when
incarcerating or otherwise confining a child, every effort must be made
to ensure respect for his or her right to contact with family, community
and friends.[286]
This contact can be by allowing correspondence, authorized time outside
the facility, or frequent and regular visits.[287]

391.The responses received to
the questionnaire the Commission sent to the States in preparing for
this report, make reference to rules recognizing visitation rights but
not to the actual exercise of that right. The Commission has been told
that this may be because there are no records showing the frequency of
the visits that each child deprived of their liberty receives, which
suggests that the States are not diligently monitoring to ensure that
this right is exercised.

392.Some States in the Caribbean
answered the Commission’s request for information and from their
responses one can infer that the exercise of this right varies greatly
from one country to the next. For example, Saint Lucia reported that
100% of the children incarcerated or otherwise confined had been visited
by family members, friends or members of the community within the last 3
months; in Suriname this figure is 40%, while in Guyana the figure is
between 5% and 10%.

393.The right to receive visits
and have contact with family means that the detention facilities must be
geographically accessible to the family and must have facilities that
allow for some degree of privacy in contacts with the family.[288]
States must have decentralized centers, preferably small in size,
located near the children’s hometowns. The Committee on the Rights of
the Child has observed that “in order to facilitate visits, the child
should be placed in a facility that is as close as possible to the place
of residence of his/her family”.[289]

394.Rule 61 of the Havana Rules
provides that:

Every juvenile should
have the right to communicate in writing or by telephone at least twice
a week with the person of his or her choice, unless legally restricted,
and should be assisted as necessary in order effectively to enjoy this
right. Every juvenile should have the right to receive
correspondence.

395.Contact with the community
must ensure, within reasonable limits, access to education and
vocational training within the community. Centers in which juvenile
offenders are held must be set up and form part of the community’s
social, economic and cultural environment.[290]
When children who are subject to custodial measures participate in
community activities, they ought not to be required to use clothing that
identifies them as institutionalized children.

396.Nevertheless, the Commission
has received information in the process of preparing this report to the
effect that programs for serving sentences tend to be located in capital
cities or in departmental capitals or major cities, which makes life
even more difficult for children who are sent there from remote areas,
and who virtually lose contact with their families, with the result that
re-assimilation into the family and the community never really happens

397.By way of example, a study
conducted of juvenile detention facilities in Uruguay found that 86% of
the children said they had visitors, and 14% said they did not. But the
experience of incarcerated children from Montevideo was quite different
from that of their counterparts in the country’s interior, where only
76% of those interviewed said that they had had visitors.[291]
Likewise, officials from the Commission’s Executive Secretariat who
visited Guyana in preparation for this report were told that the one
juvenile detention center in Guyana was a 30-minute drive from the
capital, Georgetown, followed by a 30-minute boat ride, and then a
30-minute drive by car.[292]

398.The Office of Peru’s
Ombudsman said the following about this problem:

The fact that juvenile detention
facilities are located in certain cities in the country means that there
are areas where, if the court orders that a child be confined to such a
facility, the child will be a considerable distance away from family
with the result that he or she will receive few if any visits from
family members. This will cause the family bonds to weaken or even
break. When that happens, the child’s right to family unity will have
been seriously restricted.[293]

399.Similar information was
reported to the Commission in connection with Chile:

One practical problem that occurs mainly
in the Metropolitan Region is the remote location of a number of
juvenile facilities … Elsewhere, the children and adolescents are
confined to centers that are too far removed from their communities or
are difficult to reach. This makes communication with family members
difficult; the latter cannot afford the outlay of time and money that
visiting those centers on a regular basis would mean.[294]

400.Cases like Uruguay are the
exception, as it provides resources to parents, guardians and other
family members who otherwise would not be able to afford to visit the
centers for financial reasons. When this kind of help is provided, it
is not because the law so stipulates, but rather because the juvenile
detention facilities have made it their administrative policy.
According to the reports the Commission received during its visits in
preparation for this report, this kind of financial assistance that
enables family members to visit children deprived of their liberty is
available in some Caribbean countries if the family applies to the
pertinent ministry. However, the vast majority of the families are not
aware of this.

401.States have an obligation to
ensure that visits by family members are comfortable and enable them to
bond. During the course of the visits made in preparation for this
report, the Commission learned of some of the best practices in the
region. For example, the Youth Training Center in Trinidad and Tobago
has family days, when families can visit their children and take part in
recreational activities or meals to celebrate holidays. Visits of this
kind enable families to spend several hours together and to interact in
a more natural setting, quite different from visits in an office.

402.Conversely, according to the
information received, in other States, needless restrictions are imposed
on the visits that children deprived of their liberty can receive.
According to the information supplied to the Commission, in Venezuela,
for example, the visiting schedule is twice weekly; although special
visits and family gatherings are allowed, they will depend on the good
behavior of the child deprived of his or her liberty. In Guyana,
families can only visit their children at the New Opportunities Corps
every two months, half as often as inmates at the adult prisons. At the
Wagner Center in Belize, families can visit their children every day,
but can stay for 15 or 20 minutes.

403.Another concern is that
normally, only members of the immediate family can visit. The
Commission observes that it is important for children to receive visits
from the extended family, as well as friends and members of the
community. Children will be able to return to their communities when
they leave the institution, and the more ties they maintain with the
community, the easier their reintegration will be.

404.Both the IACHR and the
United Nations have observed that a child’s right to access to
information by way of the media,[295]
his or her privacy, private life and the confidentiality of his or her
correspondence[296]
must be respected. Nevertheless, the Commission has received information
to the effect that books, magazines and newspapers are not allowed at
some juvenile facilities in Peru, where correspondence is restricted to
family members, and any incoming document must be checked first by the
head of the facility, in the child’s presence.[297]
This is the practice in other States of the region as well.

405.The Commission must again
observe that the child’s contact with family and community is essential
to his or her social reintegration, and is the only means to offset –at
least in part- the breakdown and harm that deprivation of liberty causes
to the child and to his or her family ties.

406.In this report, the
Commission has made reference to the States’ obligation to separate
children in whose lives it has intervened for the sake of assistance and
protection from those that are under the juvenile justice system; it has
also emphasized the obligation that States have to separate children
being held in preventive detention from those already found responsible
for violating criminal laws; it has emphasized the requirement that
children deprived of liberty –whether in preventive detention or serving
their sentence- must be segregated from the adult inmate population.
But there are other criteria that States must also consider when
classifying and segregating children deprived of liberty in order to
protect their rights and prevent any possible harm or violence.[298]
States must also take into account a child’s age, personality and the
seriousness of the offense that the child is alleged to have committed,
or has been found to have committed. The Commission will now discuss
some of these criteria.

407.Article 37(c) of the
Convention on the Rights of the Child provides that “... every child
deprived of liberty shall be separated from adults unless it is
considered in the child’s best interest not to do so ...”.

408.The need to house children
deprived of their liberty in places separate from adults has repeatedly
been emphasized by the Commission in the following terms:

In the Commission's view, Article 5(5),
taken in combination with Article 19 of the Convention, make clear the
State's duty to house detained minors in facilities separate from those
housing adults. It is obvious that the obligation that follows from
Article 19, namely, to grant a child special protection, cannot be
interpreted solely as requiring the creation of juvenile courts;
instead, "the protection required by his status as a minor" also means
that minors shall be housed separately from adults, in other words, in
special juvenile facilities ...Under Article 5(6) of the Convention,
"Punishment consisting of deprivation of liberty shall have as an
essential aim the reform and social rehabilitation of prisoners". The
Commission believes that, in the case of children, this aim is
absolutely impossible to achieve in penal institutions in which children
are forced to live alongside adult criminals.[299]

409.In the Commission’s view:

A child deprived of liberty must not be
held incommunicado or in an institution for adults. The prison system is
today a basic factor in embarcation on a career of crime because, just
as the prison applies programs for the correction of offenders, so does
it use mechanisms that consolidate delinquency[300].

410.The Court, too, has stated
its opinion on this subject:

To safeguard the
rights of children detainees, and especially their right to physical
integrity, it is indispensable for them to be separated from adult
detainees[301].

411.The Inter-American Court has
warned that failure to separate children exposes them:

... to conditions highly prejudicial to
their development and makes them vulnerable to others who, as adults,
could prey upon them[302].

412.According to information
supplied by some States, detained children are generally segregated from
adults. For example, in response to the Commission’s questionnaire,
Argentina reported that the institutions under the closed system --
which come under the authority of the National Secretariat for the
Child, Adolescent and the Family and located in the city of Buenos Aires
-- only house persons who are minors. However, it observed that in some
provinces, children in conflict with criminal law are housed in
provincial prisons.

413.At the same time, the
Commission has received disturbing information on the situation in other
States of the region. As a rule, the failure to segregate children from
adults is because a number of States in the region do not include all
children under the age of 18 under the umbrella of the special system of
juvenile justice; instead, children aged 15, 16 and 17 are prosecuted in
the regular criminal justice system and, if convicted, will be
incarcerated in adult facilities.

414.But there are other cases,
too. The Commission has learned, for example, that in Honduras, when it
was discovered that over 800 children were being held in adult prisons,
a nongovernmental organization filed 300 petitions of habeas corpus
asking the court either to order the children released or to send
them to facilities for children. All the petitions but one were
allegedly denied. The Commission also learned that in Nicaragua, 28
convicted children were serving their sentence in the adult prison
system.[303]

415.The Commission has also
received disturbing information that concerns the situation of children
detained or incarcerated in the United States. Under federal law,
children are not to be housed in adult facilities, except for a narrow
period before and after trial, or when they are in rural areas that have
no access to juvenile facilities, or when the conditions for
transporting them to juvenile facilities are not safe; even then, the
law provides that they are to be separated from the adults, and not be
visible to the adult inmate population, or within hearing distance of
it. Nevertheless federal law does not require the same special
segregation when a child is being tried in adult court. According to
reports the Commission has received, children can be tried in adult
court and can also be ordered to serve their entire sentence in an adult
prison. The Commission learned that in just one day in 2008, there were
7,703 children under the age of 18 in local adult jails, and 3,650 in
federal prisons.[304]

416.The information the
Commission has received concerning certain Caribbean countries indicates
that children tried in adult court serve adult sentences in adult
prisons. In some Caribbean countries, even children tried in the
juvenile justice system can be ordered to serve their sentences in adult
prisons.

417.The situation is even worse
elsewhere in some parts of the region. Some States do not have
facilities for girls. In the Caribbean, for example, the available
information suggests that only Jamaica, Guyana, Belize and Barbados have
correctional facilities for girls, which means that in the other
Caribbean States, if a female minor is convicted of violating the law,
she is sent to the prison for adult women.

418.The Commission has also
learned that in some countries of the region, boys are incarcerated in
adult facilities because there is no space available in the centers for
juvenile offenders. During its visit to Belize, for example, the
Commission was told that while there are centers for juvenile offenders,
4 children were being held in the maximum security section of the Kolbe
adult prison.

419.The Commission was also
disturbed to learn that in some Caribbean countries, children can be
transferred to adult prisons by law on the grounds that a child is
deemed to be “of such an unruly character or so depraved a character”
that he may be confined in an adult prison.[305]

420.The Commission observes that
in some States, the juvenile detention facilities are housed inside the
adult facilities, although an effort is made to keep children physically
separated from the adult inmate population. According to information
the Commission has received, the segregation is not always properly
handled. For example, the Commission learned that in Chile, children
come into contact with the adult inmate population in various ways: in
the yard or inside the buildings, making the arrangement one of
segregation in name only. The Commission was told that one of the
principal causes of the problem is the poor prison infrastructure, which
makes segregation impossible.[306]
The Commission also learned that in Nicaragua, the children were
separated from the adults by a wall, but they had to go through the
adult quarters in order access the bathroom.[307]

421.The Commission must remind
the States that the failure to segregate children and adults deprived of
liberty is a violation of international human rights law. Accordingly,
it is recommending that the States take measures to ensure that persons
deprived of liberty are properly segregated by age and maturity, in
order to prevent possible violence and abuse inside the prisons.

422.The Commission again points
out that male children and female children must be housed in separate
facilities. The facilities that house girls must be staffed with
personnel especially trained to address their particular needs.

423.The Commission was gratified
to learn that all those States that answered the questionnaire sent out
to compile information for this report have taken measures so that girls
are held separately by reason of their sex. In most cases, the
facilities for girls are completely separate; in a few cases, while the
cells for women are separate from those for men, the facilities
nonetheless house both sexes. For example, in its answer to the
questionnaire, Ecuador reported that it has eight facilities for boys,
two for girls and two facilities that house both boys and girls, where
they have common recreational, eating and laundry areas, but where
living quarters are separate. Costa Rica reported that the Zurqui Center
houses children of both sexes but keeps boys separate from girls.
Colombia reported that it has only one facility that houses both sexes,
which is the In-Transit Facility, where the only common space is the
recreation area.

424.Nevertheless, the Commission
has learned that in some States, detained children are not separated by
sex. At a number of institutions in the Caribbean, boys are not
separated from girls. Guyana and Suriname, for example, have
confinement centers that accommodate children of both sexes.

425.Most of the States that
answered the questionnaire said that specialized services were available
for health, pregnancy and nursing. Argentina, for example, reported
that while the one closed-system institution that is exclusively for
girls, the Inchausti Institute, does not offer special services for
girls who are mothers or pregnant, there are four juvenile detention
centers that have agreements with the government of the city of Buenos
Aires to house pregnant girls or girls with small children. In its
answer to the questionnaire, Colombia also reported that pregnant girls
ordered to serve custodial sentences are guaranteed health services,
prenatal check-ups and psycho-prophylactic courses as well as counseling
to help them deal with motherhood, and specialized medical care. Costa
Rica, for its part, informed the Commission that girls housed in the one
juvenile facility have access to the very same educational, cultural,
recreational and other activities that the boys have; but girls also
receive gynecological care and other specialized services. Costa Rica
also reported that any pregnant girl receives the care that her
condition requires. Arrangements are made with the judicial authorities
so that the girl leaves the center prior to giving birth, generally by
replacing the custodial sentence with non-custodial measures.

426.The Commission urges States
to adopt the measures necessary to ensure that children deprived of
their liberty are segregated by sex in such a way that children of both
sexes have access to the same programs and services, and the facilities
are able to offer girls all the specialized services they need,
particularly regarding sexual and maternal health.

427.It sometimes happens that a
child serving a custodial sentence after being convicted of violating
the law when he or she was not yet 18, turns 18 while serving his or her
sentence. The Committee has specifically addressed this situation and
has interpreted the rule of separation by age based on the best
interests of the child. As the Committee observed:

This rule does not
mean that a child placed in a facility for children has to be moved to a
facility for adults immediately after he/she turns 18. Continuation of
his/her stay in the facility for children should be possible if that is
in his/her best interest and not contrary to the best interests of the
younger children in the facility[308].

428.The Commission fully concurs
with the Committee’s interpretation. The member States, for their part,
gave different answers to the question concerning juvenile offenders who
turn 18 while still in prison or confinement. A number of States do not
have provisions stating that persons in a juvenile facility, when they
turn 18, are to be transferred out of that facility. For example,
Colombia’s response to the questionnaire sent out to compile data for
this report was that the institutions do not formally separate juvenile
offenders from those who have attained their majority. From the
information received, the Commission also observes that juvenile
detention facilities in Central America are still housing persons who
have already turned 18; they represent 18.8% of the population in the
juvenile justice system.[309]

429.Other States have set up a
separate system specifically for those who attain their majority while
serving their custodial sentence. In Costa Rica, for example, persons
who attain their majority while serving a custodial sentence do not
continue to be held alongside minors, but are not taken to adult
facilities either; instead, they are transferred to a special system.
According to what Costa Rica reported in answer to the Commission’s
questionnaire, persons who attain their majority are transferred to the
Zurquí Juvenile Training Center and the Young Adult Center. Some girls
who attain their majority are transferred to the Centro Buen Pastor,
which shelters the older adult female population, but also has separate
facilities for “young adults” sentenced under the Juvenile Criminal
Justice Act.

430.The Commission has learned
that in Argentina, Article 6 of the law provides that “custodial
sentences that judges order in the case of minors are to be served in
specialized institutions. If a minor attains his or her majority while
in a special institution for minors, he or she shall serve the rest of
his or her sentence in establishments for adults.”[310]
Despite this legislation, the Commission learned that in practice,
juvenile offenders between 16 and 18 years of age who are serving a
sentence of two years or longer are transferred to an institution for
these specific age groups. If the child is deemed not to have been
rehabilitated in the time spent at that institution, he or she will then
go back to juvenile court where he or she will be prosecuted for the
same violation of criminal law that he or she committed as a minor; this
time the sentence imposed will be the sentence that an adult convicted
of the same crime would receive. As a result, although Argentina does
not transfer the person to adult court, the impact can be the same as if
he or she were an adult.

431.Furthermore, in some States,
provision is made for the possibility that children might be sent to
adult prisons. According to the information the Commission received, in
Canada, children who were sentenced as adults serve their sentences in
juvenile institutions until they turn 18, at which point they are
transferred to adult institutions; furthermore, the sentencing court
may, under certain circumstances, order that they be sent to an adult
facility even before they turn 18.[311]
The situation is particularly serious in those States that have very
high maximum periods of incarceration, or that allow sentences of life
imprisonment; in those States, children who attain their majority while
serving a custodial sentence in a juvenile facility are transferred to
adult institutions.

432.In the Commission’s view,
sentences punish minors as if they were adults, even when the sentence
is ordered by the juvenile court; constitute violations of the minors’
rights and of the principles of the juvenile justice system. The
Commission censures the practice of sending minors to adult detention
facilities, regardless of the circumstances, as doing so puts the minors
in serious peril and at grave risk of subsequent violations of their
rights.

433.The Commission considers
that when persons incarcerated as children turn 18 while serving their
sentence, a review hearing must be held to determine whether the person
in question should remain incarcerated or be released, or whether the
remaining portion of the custodial sentence can be commuted and replaced
with a non-custodial measure. The Commission is recommending that the
hearing evaluate the possibility of putting a young person who has
attained his or her majority in a special program, to ensure that his or
her rights are not violated by transferring him or her to an adult
facility, and also to ensure that the rights of the other children are
not imperiled by leaving the young adult in the juvenile facility.

434.The Commission has learned
that in some States where maras or gangs are a problem, the
juvenile detention centers classify these children not on the basis of
either age or sex, but on the basis of whether they belong to gangs
active in their territory. In other words, children deprived of
liberty are housed in separate facilities or cellblocks, according to
the gang to which they belong, or with which they are alleged to be
affiliated. According to what the Commission has been told, while this
segregation has not eliminated violence in the detention facilities, it
has succeeded in reducing the violence considerably.

435.Regarding these practices,
the Commission believes that the States must strike a proper balance
between protecting the welfare of children deprived of their liberty and
developing a classification system that meets the standards addressed in
this section. The fact that gangs or maras may have an impact on
how a juvenile detention facility is run, should not mean that
classification standards should be ignored. Furthermore, the state’s
protection of the welfare of children in its custody must extend to all
children, irrespective of whether or not they belong to a certain group.

436.The Commission is troubled
by the fact that the detention conditions of children who belong to
gangs or maras,tend to be worse than
those of the other inmates. For example, in its report on its visit to
Honduras, the Subcommittee on Prevention of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment found that “in general,
certain groups of individuals were segregated from others, such as the
members of the maras and those considered to be '“extremely
dangerous”'. Many get no direct sun in their living area, which amounts
to discrimination against them in relation to other prisoners, and are
denied the conditions for a decent life, without any legal basis for
such treatment."[312]

437.Depriving a child of his or
her liberty for a violation of the law does not give the state the
authority to curtail other rights of that child. Furthermore, when
States order custodial measures for children, they become the guarantors
of those children’s rights, and accordingly must take positive measures
to ensure that the children in their custody effectively enjoy all their
rights. The Commission has received information concerning violations
of the human rights of children deprived of liberty. In this section,
the Commission will address the specific obligations incumbent upon the
States to guarantee the human rights of children and adolescents
deprived of their liberty.

438.The Commission must
emphasize that any deprivation of liberty must be done in such a way as
to guarantee physical integrity and unconditional respect for the human
rights of the detained children.[313]
The Inter-American Court has held that deprivation of liberty sometimes
invariably leads to the infringement of human rights other than the
right to personal liberty.[314]
The right to personal privacy and the right to family privacy may be
restricted, for example. However, the Court has held that this
restriction of rights, which is a consequence or collateral effect of
the deprivation of liberty, must be strictly limited,[315]
as any restriction of a human right is justifiable under international
law only when it pursues a legitimate purpose and is adequate, necessary
and proportionate, i.e. necessary in a democratic society.[316]

439.At the same time, the Court
has been clear in emphasizing that other rights –such as the right to
life, the right to physical integrity, freedom of religion and the right
to due process- cannot be restricted under any circumstances during the
deprivation of liberty, and any such restriction is prohibited by
international law. According to the Court, persons deprived of their
liberty are entitled to have those rights respected and ensured just as
those who are not so deprived.[317]

440.Furthermore, the Court has
consistently stated that the State is the guarantor of the rights of
persons held in its custody inasmuch as prison authorities exercise full
control over those in their custody.[318]
This role of the State as guarantor is all the more important when the
person in its custody is a minor. As the Court held, this means that the
State must perform its role as guarantor by taking all the precautions
in view of the natural vulnerability, lack of knowledge and defenseless
naturally exhibited by minors in such circumstances.[319]

441.When the person deprived of
liberty is a minor under the age of 18, the Inter-American Court has
held that the State has an added obligation to provide the special
protection to which minors are entitled by virtue of their age:

... to protect a
child’s life, the State must be particularly attentive to that child’s
living conditions while deprived of his or her liberty, as the child’s
detention or imprisonment does not deny the child his or her right to
life or restrict that right[320].

... when the person
the State deprives of his or her liberty is a child ... it has the same
obligations it has regarding to any person, yet compounded by the added
obligation established in Article 19 of the American Convention. On the
one hand, it must be all the more diligent and responsible in its role
as guarantor and must take special measures based on the principle of
the best interests of the child.[321].

442.Concerning the State’s role
as guarantor, the Commission has observed that:

... the State, by depriving a person of
his liberty, places itself in the unique position of guarantor of his
right to life and to physical integrity. When it detains an individual,
the State introduces that individual into a "total institution"--such as
a prison--where the various aspects of his life are subject to an
established regimen; where the prisoner is removed from his natural and
social milieu; where the established regimen is one of absolute control,
a loss of privacy, limitation of living space and, above all, a radical
decline in the individual's means of defending himself. All this means
that the act of imprisonment carries with it a specific and material
commitment to protect the prisoner's human dignity so long as that
individual is in the custody of the State, which includes protecting him
from possible circumstances that could imperil his life, health and
personal integrity, among other rights.[322]

443.In the particular case of
children subjected to custodial measures, the IACHR has also indicated
that when the time comes to apply these measures, the best interests of
the child have to be considered, which means affording children deprived
of their liberty the special measures required by the added rights that
they, as children, enjoy that others do not.[323]

444.Article 37(c) of the
Convention on the Rights of the Child provides that States shall ensure
that:

Every child deprived
of liberty shall be treated with humanity and respect for the inherent
dignity of the human person, and in a manner which takes into account
the needs of persons of his or her age ....

445.The Tokyo Rules provide that
in the implementation of non-custodial measures, the offender's rights
shall not be restricted further than was authorized by the competent
authority that rendered the original decision.[324]

446.Rule 26(2) of the Beijing
Rules provides that:

Juveniles in
institutions shall receive care, protection and all necessary
assistance-social, educational, vocational, psychological, medical and
physical-that they may require because of their age, sex, and
personality and in the interest of their wholesome development.

447.The Inter-American Court has
interpreted the obligations that the States have by virtue of Articles 6
and 27 of the Convention on the Rights of the Child, under which the
right to life includes the State’s obligation to ensure “to the maximum
extent possible the survival and development of the child.” The
Committee on the Rights of the Child has interpreted the word
“development” in its broadest sense, as a holistic concept embracing the
child’s physical, mental, spiritual, moral, psychological and social
development.[325]
The Court therefore held that in the case of children deprived of
liberty, States have an obligation to, inter alia, provide them
with health care and education, so as to ensure that their detention
will not destroy their life plans.[326]

448.Rule 13 of the Havana Rules
provides that:

Juveniles deprived of
their liberty shall not for any reason related to their status be denied
the civil, economic, political, social or cultural rights to which they
are entitled under national or international law, and which are
compatible with the deprivation of liberty.

449.The Commission again asserts
that States must ensure the human rights of all children deprived of
their liberty. States also have a duty to conduct activities that serve
to neutralize or reduce the de-socializing effects of the deprivation of
liberty. Any punitive measures must, to the greatest extent possible,
avert violations of rights other than the right to freedom of movement,
such as the right to education and health, and serve to strengthen
family bonds and community ties.[327]

450.One important preventive
measure is to ensure that, when they enter a detention facility,
children are informed of their rights and receive all information
concerning the rules and regulations at the facility.[328]
The Commission commends the practice in Venezuela where the internal
rules of detention facilities even make provision for assemblies, held
to give the juvenile inmates an opportunity to express their opinion
concerning the operation of the centers. The State informed the
Commission that these assemblies are attended by the juvenile inmates,
the technical and executive staff, a sentence enforcement officer, a
public defender, a representative of the State Council on the Rights of
Children and Adolescents, and a representative of the Ombudsman’s
Office, to guarantee and restore any violated rights. In Brazil, too,
the State reported that each center is to draw up its own internal
rules, with staff and children alike involved in the process.

451.In the final analysis,
States must ensure that the law does not needlessly restrict the rights
of children deprived of their liberty; but they must also ensure that
the law is properly enforced, to which end they are to establish
programs to make certain that the children are able to effectively
exercise their rights while being subject to some custodial measure.
Furthermore, States must ensure that the resources needed for those
rights to be exercised in practice are available. Lack of resources is
no excuse for violation of children’s human rights in the juvenile
justice system.

452.Nevertheless, the
information the Commission has received indicates that children deprived
of liberty in the Americas have been, and continue to be, the victims of
torture, sexual abuse, humiliation and unacceptable disciplinary
measures such as solitary confinement, corporal punishment and other
forms of violence. Children deprived of liberty have great difficulty
exercising their rights, especially their rights to an education,
training, recreation and health. The Commission will now examine some
of the rights that are most frequently violated when children are
deprived of their liberty.

453.In those cases where States
find it necessary, as a last resort, to subject a child to a sentence of
incarceration or other custodial measure, they have an obligation to
guarantee that child’s right to live in conditions that are compatible
with his or her dignity, and to fulfill its obligation to guarantee the
child’s right to life and right to physical integrity.[329]

454.The Court has consistently
held that the right to life is a fundamental right within the American
Convention, as it is the condition sine qua non for the enjoyment
of all other rights.[330]
For its part, the right to physical integrity is so important that the
American Convention protects it specifically by, inter alia, the
prohibition of torture and cruel, inhuman and degrading treatment, and
by stipulating that it cannot be suspended in states of emergency.[331]

455.The Court has also clarified
that the right to life and the right to physical integrity require not
only that the State respect them (a negative obligation), but also that
the State adopt all appropriate measures to ensure their enjoyment (a
positive obligation), in furtherance of the general obligation that the
State undertook in Article 1(1) of the Convention.[332]

456.In the case of children
deprived of their liberty, States also undertake the same obligations
they have with respect to any person; they also have the added
obligation established in Article 19 of the American Convention and
Article VII of the American Declaration. Where children are involved,
therefore, the State must undertake its role as guarantor with greater
care and responsibility, and must undertake special measures in the
light of the principle of the child’s best interests.[333]

457.Thus, to protect a child’s
life, the State must be particularly attentive to that child’s
circumstances while deprived of his or her liberty, so that the child’s
detention or imprisonment does not deny the child his or her right to
life, or in any way restrict that right.[334]
As for the right to physical integrity, because the prohibition of
torture and cruel, inhuman or degrading treatment or punishment is now
part of the international jus cogens,[335]States must take into account a child’s status as such and apply the
highest standard when determining whether the treatment to which a
detained child has been subjected constitutes cruel, inhuman or
degrading treatment or punishment.[336]

458.The Commission has observed
the following in this regard:

... in the case of children the highest
standard must be applied in determining the degree of suffering, taking
into account factors such as age, sex, the effect of the tension and
fear experienced, the status of the victim’s health, and his maturity,
for instance[337].

459.The Court, too, has held
that:

... the fact that the
alleged victims were children requires applying the highest standard in
determining the seriousness of actions that violate their right to
physical integrity.[338]

460.Respect for the rights to
life and to physical integrity in the case of children means that all
forms of violence within the juvenile justice system must be
prohibited. This applies to all phases of the process, from the first
contact with the police authorities to the carrying out of the sentence.

461.Here, the Court has held
that:

... the States Party
to the American Convention are under the obligation, pursuant to
Articles 19 (Rights of the Child) and 17 (Rights of the Family), in
combination with Article 1(1) of this Convention, to adopt all positive
measures required to ensure protection of children against mistreatment,
whether in their relations with public authorities, or in relations
among individuals or with non-governmental entities[339].

462.Furthermore, as the
Commission has observed on previous occasions, the State’s duty to
protect is not fulfilled merely by preventing violence on the part of
its agents; instead, it must also prevent any form of violence from
third parties. As the IACHR stated:

The obligation that follows from being the
guarantor of these rights means that agents of the State must not only
refrain from engaging in acts that could harm the life and physical
integrity of the prisoner, but must also endeavor, by all means at their
disposal, to ensure that the prisoner is maintained in such a way that
he continues to enjoy his fundamental rights, especially his right to
life and to physical integrity. Thus, the State has a specific
obligation to protect prisoners from attacks by third parties, including
other inmates[340].

463.The Court, too, has held
that:

... the State’s
obligation to protect all persons subject to its jurisdiction includes
the duty to control the action of private third parties, an obligation
enforceable as against all[341].

464.On many occasions, the
Commission and the Court have been called upon to examine situations
involving the mistreatment of children deprived of their liberty and the
deplorable conditions to which they were subjected.[342]
No state in the hemisphere is immune to the problem. And in spite of
repeated recommendations from the Commission and the Court, the
information on the situation within the region is not encouraging.

465.By way of example, the IACHR
observes that in Guatemala, the United Nations Human Rights Council’s
Special Rapporteur on extrajudicial, summary or arbitrary executions
documented a situation in which the authorities had allegedly failed to
intervene to prevent acts of violence, and reportedly never properly
investigated what had happened:

On 22 June 2006, it
was again the turn of the Mara 18 detainees to kill detainees of the
rival gang the Mara Salvatrucha held at Etapa II…The report found that
some wardens contributed to arming the killers and enabling them to
enter the cells of the victims, while the prison authorities and the
police failed to intervene to stop the killing…The report of the Policía
Nacional Civil notes that it appears from the video that a warden had
unlocked the doors to the Mara Salvatrucha section…the gang members shot
and attacked their victims with stones, severing limbs and crushing
skulls. Forces of the Policía Nacional Civil entered the detention
facility when the violence started, but inexplicably withdrew after 2
minutes and returned only 41 minutes later. When investigators of the
Ministerio Público recorded the crime scene, they did not inspect the
dormitories in which the attack had obviously been prepared. They also
left behind skull fragments, stones used as weapons and ammunition
shells.[343].

466.In Honduras, incarcerated
children and adolescents who are members of maras also endure
deplorable conditions, as the expert in the case of Servellón García
et al. v. Honduras testified before the Inter-American Court of
Human Rights:

Conditions at the
juvenile detention centers are no better than the conditions described
in the adult prisons. The children and adolescents, presumed members of
maras, live in cells with no ventilation, no bathrooms and tied
by the feet and hands, forced to relieve themselves in the cells. These
and other factors indicate that members of maras or gangs
continue to be segregated from the rest of the population in adult
prisons and in juvenile detention centers.

A palpable example of the situation
prevailing in the detention centers is the “Renaciendo” Center. In late
2005, the Office of the Special Prosecutor for Human Rights brought
three charges against eleven administrative officials and police
personnel, accusing them of criminal abuse and torture of juvenile
inmates; on November 4, 2005, the Secretariat of Public Health, through
the Metropolitan Sanitation Region, issued an opinion in which it
recommended that the facility be shut down immediately because of the
unhealthy conditions in the units housing convicted inmates, those
housing children in preventive detention and those housing the inmates
belonging to maras 18 and 13 were unsanitary.[344]

467.Finally, the Commission
takes note of the concern expressed by the United Nations Committee on
the Rights of the Child in 2010, in connection with allegations of
torture and abuse of children by law enforcement officers, in the
context of the fight against “maras”.[345]
According to the information supplied to the Committee on the Rights of
the Child in 2010, in El Salvador, maras appeared to have over
10,000 members, mainly children between the ages of 16 and 18. The
Committee expressed concern at the lack of a juvenile justice system
that met the standards of the Convention; the repressive approach that
the State had used thus far to deal with juvenile delinquency, notably
against “maras”, and the resulting increase in the recourse to
incarceration in the case of children; the serious lack of alternatives
to incarceration; the fact that law enforcement officials, judges and
prosecutors were not receiving systematic training about the Convention
and juvenile justice standards; the limited access that children
deprived of their liberty had to education; and the information
reporting that at least five adolescents had died in 2009 in
rehabilitation centers where children were deprived of their liberty.[346]

468.In this report, the
Commission is again urging the most scrupulous respect for the rights to
life and to physical integrity in the case of children deprived of
liberty, in keeping with the principles and standards set forth in this
chapter.

469.Because children are still
growing, the right to food that is adequate for health and sufficient
for strength is of fundamental importance, and States that have juvenile
offenders in their custody have an obligation to guarantee this right.

470.Rule 20 of the United
Nations Standard Minimum Rules for the Treatment of Prisoners provides
the following with respect to the right to adequate and sufficient food:

... Every prisoner
shall be provided by the administration…with food of nutritional value
adequate for health and strength, of wholesome quality and well prepared
and served.

471.In the particular case of
children deprived of their liberty and their right to adequate and
sufficient food, Rule 37 of the Havana Rules provides the following:

Every detention
facility shall ensure that every juvenile receives food that is suitably
prepared and presented at normal meal times and of a quality and
quantity to satisfy the standards of dietetics, hygiene and health and,
as far as possible, religious and cultural requirements. Clean drinking
water should be available to every juvenile at any time.

472.Even so, the information the
Commission received indicates that the States in the region are not
adequately ensuring this right. By way of example, reports on prison
conditions in Brazil say that the food is neither adequate nor
sufficient, and prisoners do not eat on a regular basis.[347]
The Commission has also received information that the quality of the
food at the juvenile detention facilities in Nicaragua is poor.[348]
The Commission has been told that children incarcerated in Uruguay are
fed spoiled food as a form of punishment.[349]
A recent report on the situation in Central America states that some
juvenile detention facilities have no drinking water.[350]
UNICEF reported that one facility in Panama had no drinking water;
instead, an improvised system was used to bring water from the river so
that the children could bathe and clean their cells; staff at the center
brought in barrels of drinking water every two days, which was the only
source of drinking water for general use there.[351]

473.The Commission is urging
States to ensure that children deprived of their liberty receive a
nutritious diet that takes into account their age, health, physical
condition, religion and culture. The meals must be prepared and served
in a hygienic way; at least three meals a day should be provided; the
intervals between meals should be reasonable.[352]

474.The provisions contained in
the international instruments on medical treatment for physical and
mental health for adult prisoners undoubtedly also apply to children
deprived of their liberty. On the subject of the right of detained
persons to the highest possible level of physical and social well-being,
the Commission has observed that:

Persons deprived of
liberty shall have the right to health, understood to mean the enjoyment
of the highest possible level of physical, mental, and social
well-being, including amongst other aspects, adequate medical,
psychiatric, and dental care; permanent availability of suitable and
impartial medical personnel; access to free and appropriate treatment
and medication; implementation of programs for health education and
promotion, immunization, prevention and treatment of infectious,
endemic, and other diseases; and special measures to meet the particular
health needs of persons deprived of liberty belonging to vulnerable or
high risk groups, such as: the elderly, women, children, persons with
disabilities, people living with HIV-AIDS, tuberculosis, and persons
with terminal diseases. Treatment shall be based on scientific
principles and apply the best practices.

The provision of health services shall, in
all circumstances, respect the following principles: medical
confidentiality; patient autonomy; and informed consent to medical
treatment in the physician-patient relationship[353].

475.Rule 49 of the Havana Rules
provides that:

Every juvenile shall
receive adequate medical care, both preventive and remedial, including
dental, ophthalmological and mental health care, as well as
pharmaceutical products and special diets as medically indicated. All
such medical care should, where possible, be provided to detained
juveniles through the appropriate health facilities and services of the
community in which the detention facility is located, in order to
prevent stigmatization of the juvenile and promote self-respect and
integration into the community.

476.Rule 51 of the Havana Rules
provides that:

The medical services
provided to juveniles should seek to detect and should treat any
physical or mental illness, substance abuse or other condition that may
hinder the integration of the juvenile into society. Every detention
facility for juveniles should have immediate access to adequate medical
facilities and equipment appropriate to the number and requirements of
its residents and staff trained in preventive health care and the
handling of medical emergencies. Every juvenile who is ill, who
complains of illness or who demonstrates symptoms of physical or mental
difficulties, should be examined promptly by a medical officer.

477.Rule 54 of the Havana Rules
is also of the utmost importance, and reads as follows:

Juvenile detention
facilities should adopt specialized drug abuse prevention and
rehabilitation programs administered by qualified personnel. These
programs should be adapted to the age, sex and other requirements of the
juveniles concerned, and detoxification facilities and services staffed
by trained personnel should be available to drug- or alcohol-dependent
juveniles

478.As the Inter-American Court
has held, States must:

... pay special
attention to the needs and the rights of the alleged victims owing to
their condition as girls, as females belonging to a vulnerable group.[354]

479.The Commission has been very
clear in this regard and has observed that girls deprived of their
liberty must receive specialized medical care that adequately addresses
their needs in the area of reproductive health:

In particular, they
shall have access to gynecological and pediatric care, before, during,
and after giving birth, which shall not take place, as far as possible,
inside the place of deprivation of liberty, but at hospitals or
appropriate institutions. If a child is born in a place of deprivation
of liberty, this fact shall not be mentioned in the birth certificate.

In women’s or girls’
institutions there shall be special accommodation, as well as adequate
personnel and resources for pre-natal and post-natal care and treatment
of women and girls.

Where children of parents deprived of
their liberty are allowed to remain in the place of deprivation of
liberty, the necessary provisions shall be made for a nursery staffed by
qualified persons, and with the appropriate educational, pediatric, and
nutritional services, in order to protect the best interest of the child[355].

480.The Commission must
emphasize the standards cited above and remind the States that they have
an obligation to ensure that children deprived of their liberty have
access to health programs –including programs in preventive health and
hygiene as well as special programs in sexual and reproductive health,
oral health, prevention of HIV-AIDS, mental health, treatment for drug
dependent children, special programs to prevent suicide, and others.

481.The Court, for its part, has
also stated that health care must be the proper health care that every
person deprived of their liberty requires; there should be regular
medical supervision to ensure the children’s normal growth and
development that is so essential to their future.[356]
The Court has also held that “assistance by a physician not related to
prison or detention center authorities is an important safeguard against
torture and physical or mental ill-treatment of inmates”[357].

482.In their responses to the
questionnaire that the Commission sent to the States, the latter
mentioned a number of means by which children in the juvenile justice
system have access to health services. In most cases, they said there
were no specialized health care or infirmary services, and that they had
to rely on the government agencies that provide those services. In a
number of cases, however, States answering the questionnaire did say
that medical or nursing staff visited the juvenile facilities on a
regular basis, in some cases every week. Little information is
available about conditions of detention of juvenile offenders housed in
mental health institutions. In any case, the available information
reveals coverage problems, as well as the lack of specific procedures to
provide treatment for those who require it.

483.Argentina, for example,
reported that all closed-system institutions have an infirmary –most of
which have a section with beds for those who have to spend the night
there - dental services and medical consulting rooms; children requiring
specialized health care services are treated at the appropriate public
hospital, away from the juvenile facility. Honduras reported that in
some institutions like the Renaciendo Complex, a doctor and nurse are on
duty and psychological counseling is available. There are monthly
medical examinations.

484.From the information it
received, the Commission observes that while in the majority of the
States in the region, there is officially an infirmary at every juvenile
detention facility, as a general rule, however, these infirmaries are
able to provide basic, out-patient services, but not the more complex
procedures. The infirmaries also have little in the way of medications
and specialized personnel.

485.Some States, like Venezuela,
expressly mentioned the fact that they do not have sufficient medical
personnel or the equipment and materials needed to meet the demand.
Most juvenile detention facilities in Venezuela do not have on-site
medical staff, so that if children need medical care they are taken to
hospitals, to establishments run by the Misión Barrio Adentro
and/or to comprehensive care facilities. Similarly, in Bolivia, the
Ombudsman mentioned how difficult it is to guarantee this right, due to
a lack of, inter alia, human resources, equipment, medications.
According to the information received, sufficient qualified medical
personnel able to work either permanently at the institutions for
juvenile offenders or to visit them on a reasonably regular basis are
simply not available.[358]
The IACHR was told that at some centers in El Salvador, Guatemala,
Nicaragua and Honduras, the children are not given medications even when
they have prescriptions from doctors; as a result, family members are
asked to provide the medications.[359]

486.The Commission is concerned
by the fact that based on the reports received, the right to heath of
children deprived of their liberty is a critical state in some countries
of the region. During the visits made in preparation for this report,
the Commission learned of very disturbing situations. For example,
during the visit to Guyana, the Commission was told that children are
often admitted to the juvenile facilities with scabies or fungal
infections, caught during the time spent in police holding facilities.
They are also frequently suffering from anemia when they arrive. During
its visit to Suriname, the Commission was told that boys put pellets in
their penises using any sharp item they could get their hands on, all in
order to bring on an infection. According to reports, this is a common
practice in adult prisons, which illustrates to the Commission how
incarcerating children alongside adults can have harmful effects.

487.The Commission has also
received information to the effect that not every State has a strategy
for preventing or controlling sexually transmitted diseases. For
example, at the Antuhué center in Chile, an unconscious child was
urgently transported to the hospital in Rancagua on May 14, 2005; he had
been complaining of abdominal pains for a week and staff at the facility
had diagnosed him as having an inguinal hernia, and did not consider it
was important. After being operated on at the hospital, it was
discovered that the child had a “virulent infection” caused by
gonorrhea, a venereal disease.[360]
At the same time, the Commission takes a favorable view of the
information that Guyana supplied on the questionnaire to the effect that
children deprived of their liberty are tested for HIV and tuberculosis.
According to what the State reported, if a child is HIV positive, he or
she is provided with antiretroviral drugs at no cost and given
counseling in a community hospital.

488.The Commission observes that
in most States, access to health services depends on the coordination
between the juvenile detention facilities and the public health
services. In Colombia, for example, the national health agencies are
tasked with providing medical and hospital care at the levels of
promotion, prevention, intervention and rehabilitation of adolescents in
conflict with the law. This includes the mental health units that
conduct programs to treat and rehabilitate children addicted to narcotic
drugs, and to handle problems such as physical, mental and sensory
disabilities.

489.The question of special
programs for addicted children varies from one State to the next. In
some cases programs of this kind do exist. However the information
compiled suggests problems in terms of the accessibility and
availability of places to treat addicted children. In some countries,
like Venezuela, the information made available to the Commission in
response to the questionnaire indicates that there are no permanent
programs for drug abuse prevention and treatment of children deprived of
their liberty. In the Eastern Caribbean, the jail in Saint Vincent and
the Grenadines is the only one that has a drug treatment program.
Elsewhere, the information the Commission received suggests that drug
treatment programs are not available for children deprived of their
liberty[361]
(although there are services outside the institutions, such as the
detoxification center in Antigua and the Turning Point Rehabilitation
Center in Saint Lucia). In the Western Caribbean, the prison run by the
Kolbe Foundation in Belize is the only one in the country that has an
in-house drug treatment program.

490.In the Commission’s view,
the lack of an adequate service to provide drug treatment constitutes a
failure to comply with the State’s obligation to protect the rights of
all children within its jurisdiction and, in this case, in its custody
as well.

491.In order to guarantee the
right to health in the case of detained children, the facilities in
which they are housed must ensure access to properly equipped medical
and health facilities, staffed with properly trained and independent
medical personnel. The juvenile institutions must keep records of all
medical treatment and medications administered to children deprived of
their liberty.[362]
Institutions for juvenile offenders must have mental health services so
that they can properly address the children’s needs, especially given
the fact that the inhumane and degrading detention conditions,
compounded by the violence typical of such facilities, will invariably
take a toll on a child’s mental health and adversely affect his or her
mental growth and development and physical and mental well-being.[363]
States must pay particular attention to the sexual and reproductive
health of juvenile offenders deprived of their liberty, and to the
specific needs of those who require drug treatment programs.

492.The objectives of juvenile
justice necessitate educational programs, including formal schooling,
vocational and job training, recreational activities and sports.[364]
The Court has elaborated upon this point where it stated that:

... Regarding to
children deprived of their liberty and thus in the custody of the State,
the latter’s obligations include that of providing them with health care
and education, so as to ensure to them that their detention will not
destroy their life plans[365].

493.All children deprived of
their liberty, without distinction, must have access to educational
programs. Within the juvenile justice system, the treatment and
education of children must be geared toward promoting respect for human
rights[366]
and take cultural diversity into account.[367]
Furthermore, the education and vocational training provided at
institutions for juvenile offenders must be recognized by the broader
educational system and operate in close coordination with it.

494.The Court has addressed the
issue of children’s right to education in the following way:

It should be
highlighted that the right to education, which contributes to the
possibility of enjoying a dignified life and to prevent unfavorable
situations for the minor and for society itself, stands out among the
special measures of protection for children and among the rights
recognized for them in Article 19 of the American Convention[368].

495.The Court also held that the
State’s failure to fulfill its obligation to provide programs of this
type has all the more serious consequences when the children deprived of
their liberty are from marginal sectors of society, because the failure
to provide an adequate education limits their chances of actually
rejoining society and carrying forward their life plans.[369]

496.However, the United Nations
Special Rapporteur on the Right to Education has observed that:

The juvenile justice
system has been unable to provide sufficient quantity and quality of
training and education to the children detained. Even though there have
been improvements in some countries, for the most part they received
inadequate education, ill-suited to their needs[370].

497.The Commission concurs with
the UN Rapporteur that guaranteeing access to various types of
educational and training programs also means addressing the particular
needs of specific population groups, while respecting ethnic, racial and
linguistic diversity. For example, in the case of indigenous children,
educational programs must respect their cultural uses, practices and
customs. Programs must also be respectful of these children’s language,
which means having special staff or competent interpreters on hand and
providing them with adequate written materials. Nevertheless, in
answering the questionnaire, only one Member State reported that
specific programs are in place for indigenous children deprived of their
liberty.

498.Education and professional
training programs must also respect the equality of men and women.
Nevertheless, the United Nations Special Rapporteur on the right to
education observed that:

... in Latin America,
recent research showed quite clearly that, in many States in the region,
courses that are offered to women in detention are mostly related to
issues traditionally linked to women, such as sewing, kitchen duties,
beauty and handicrafts[371].

499.That information illustrates
the discrimination that attends some programs conducted within the
juvenile justice system.

500.The Commission appreciates
the information concerning educational best practices within the region.
Costa Rica, for example, told the Commission that a formal education is
mandatory for children deprived of their liberty; thus, juvenile
offenders receive the same programs that the rest of the country’s
student population receives. Under an agreement with the Ministry of
Public Education, a school exists inside the walls of the detention
center and offers all grades up to the secondary level.

501.The information received in
connection with other States is less encouraging. For example, while
education is mandatory in Guyana up to 16 years of age, children over
the age of 14 in a juvenile detention facility attend only one day of
school a week; on the other days of the week they are in vocational
training. This is a pattern that repeats itself in most States of the
region, where vocational training for children deprived of their liberty
takes precedence over an academic education.

502.Overall, the answers that
the States gave to the questionnaire the Commission sent out to compile
information for this report gave little information about detained
children’s access to the right to education. The United Nations
Rapporteur on the right to education has observed the following about
the dearth of available information:

If evidence of
participation rates of detained children in education is rare, evidence
of the quality of educational provision is even scarcer. However, there
are welcome signs that some States are addressing the issue. Chile, for
instance, has recently introduced reforms to its juvenile justice system
with the aim of complying more fully with international and domestic
legal standards relevant to children’s education. Similarly, Colombia
and Argentina are modernizing their juvenile systems with that aim[372].

503.During the Commission’s
visits to compile information for this report, it observed that in the
Caribbean, training schools have been set up for children that generally
involve some corrective element. However, the classrooms are generally
a combination of children of various ages and various levels of
schooling, which makes it difficult for teachers to plan and give
classes. According to what the Commission was told, some teachers are
not trained educators and some are or have been inmates. At some
centers, the children are allowed to sit for the Caribbean elementary
and secondary tests, but, in most cases, the programs are not recognized
by the respective Ministry of Education.

504.The Commission also noted
that at Guyana’s New Opportunities Corp., Belize’s Wagner Boys Facility
and Suriname’s Santo Boma Prison, a very small percentage of the
children attend school in the community. Although this is a good
practice, it is unfortunately not widespread. During its visit, the
Commission was told that out of a total of 195 children in Guyana’s
prison, only eight attend community schools.

505.The situation is even more
acute in the case of children incarcerated in adult prisons, where
educational and vocational training opportunities are more limited.
From the information the Commission compiled, while at some adult
prisons, like the one in Guyana, children have the opportunity to
participate in educational and training programs with young adults under
the age of 25, the number of prisoners is so high that not all children
have access to these programs and not all prisons have programs
specifically for young adults. In most of the Caribbean countries,
adult prisons do not offer educational and training programs for the
children deprived of their liberty there. Generally, these children are
not accepted at the community schools because of the stigma of being
deprived of their liberty. As a result, these children are being denied
their right to an education.[373]

506.The rights of children
alleged to be members of maras or gangs also suffer when such
children are deprived of their liberty. The Commission has also
received information to the effect that the rights of children presumed
to be members of a gang are more severely restricted. For example, the
Commission was informed that in Honduras, these children are only
allowed into the prison yard once a week and their visits are
restricted. Children alleged to be gang members are not permitted to
attend classes in juvenile detention facilities, which means they are
being denied their right to an education.[374]

507.The information compiled by
the Commission during its hearings also reveals that in States like
Argentina, Brazil, Paraguay and Uruguay, the failure to put into
practice educational and vocational training programs means that the
children remain idle in the detention facilities, with no educational
activities, either formal or informal.

508.In some States like Chile,
the information compiled shows that although training activities do
exist, they are basic and mainly a distraction, and do little to prepare
the child for a job or to continue his or her studies.[375]

509.Based on the answers to the
Commission’s questionnaire, in a significant number of countries the
training programs are provided by subcontractors retained by the
authorities in charge. As for supervision of the subcontracts,
generally speaking the States have administrative-financial controls,
but rarely check the quality of the services, or whether the persons who
participate in these services are actually performing. In Colombia, for
example, the State reported that the Colombian Family Welfare Institute
has an oversight system to ensure that the services retained by the
Institute are being provided by social organizations whose procedures
are geared toward guaranteeing and/or restoring children’s rights. The
Commission was also told that in Venezuela, for example, the State does
not subcontract any type of services; however, in the case of some
centers it enters into agreements with other governmental and
nongovernmental organizations to have socio-productive, cultural,
sports-related and educational activities conducted.

510.The Commission recalls that
one characteristic of a State’s intervention is the socio-educational
content of the custodial measures. This means the obligation of States
to take a holistic approach to the problem of juvenile offenders, which
should combine the punitive function (holding the child accountable for
his or her conduct) and the socio-educational function (aimed at
reintegrating the child into his or her family and community). In the
Commission’s view, the role of the family, nongovernmental organizations
and private educational institutions in conducting educational and
vocational training programs for children deprived of their liberty
should be strengthened. At the same time, however, States cannot
neglect the formal education that all children deprived of their liberty
must receive to ensure that their studies are not abandoned as a result
of the penalty they are expected to pay.

511.The right to education is
closely related to detained children’s right to recreation. Because
they are still growing and maturing, children deprived of their liberty
must have access to recreation programs. By the same token, these
programs must be designed to ensure contact between the children
deprived of their liberty and their families and communities. Juvenile
detention facilities should arrange programs with the community so that
the children subject to the sanction of imprisonment are able to
socialize, engage in play, relax, play sports and participate in health
and education programs, including beyond the walls of the juvenile
facility. Participation in these programs should increase as the child
gets closer to his or her release date, as a way of facilitating his or
her re-assimilation into the family and community.

512.The information the
Commission received indicates that the vast majority of juvenile
detention centers in the member States have space for open-air
recreation, even though that space is sometimes limited and not designed
in a manner that would encourage the children to make use of it. At the
same time, however, in many countries of the region there are no
programs that enable children deprived of their liberty to associate
with their families and communities. In some cases, these programs do
not even exist inside the walls of the institution, because the
necessary infrastructure is lacking.

513.The information received by
the Commission indicates that some facilities, such as Costa Rica’s
Zurquí Juvenile Criminal Center and the New Opportunities Corp. in
Guyana have a soccer field and a covered arena for cultural and
sports-related activities. The Guyana facility also allows children to
join sports teams and musical groups in the community and even allows
them to travel with their team and music group to participate in
sporting events and shows.

514.However, many other
facilities across the hemisphere view their role as strictly custodial
in nature. At such facilities, no space is allotted for recreational
activities. In fact, the Commission found that some authorities even
believe that recreational activities pose a safety and security risk,
and therefore prohibit them. For example, during its visits, the
Commission learned that the Stoney Hill Remand Center in Jamaica has no
recreation space outdoors; only those children who exhibit good behavior
are allowed to occasionally go outside for some activity. The other
children are inside all the time; they eat and engage in activities in a
large room that at one time was open to the air but that now has a
roof. The staff at the institution told the IACHR that they are hoping
that the children will be able to play cricket in that room once the
lights have been secured. During the Commission’s visit, however, it
observed that no sports activities could be played there except for
morning exercises and table tennis.

515.During another visit, the
Commission learned that the children deprived of their liberty at the
Youth Training Center in Trinidad and Tobago take active part in sports
for an hour and a half each day. The children found guilty of violating
criminal laws have additional sports, educational and recreational
activities; however, those in preventive detention are not allowed to
participate in these additional activities. The Commission is concerned
by the perception in the region that children in preventive detention
pose an even greater flight risk, with the result that their right to
recreation tends to be restricted. For example, during its visits, the
Commission learned that at Trinidad and Tobago’s Youth Training Center,
children in preventive detention have to be handcuffed when they leave
the locked areas, even though the external perimeter of the facility is
fortified; while children who have been convicted are able to go
anywhere in the center with their hands free.

516.The Commission has also
received information to the effect that the rights of children presumed
to be members of a gang are even more severely restricted. For example,
the Commission learned that in Honduras, suspected gang members can go
outside only once a week, and have their visits restricted.[376]

517.Under a juvenile justice
system that is respectful of human rights, the purposes that penalties
are to serve require that there be programs to enable children deprived
of their liberty to exercise their right to recreation. These programs
are to facilitate their re-assimilation into the community.

518.In order to protect and
ensure the right to life and the right to physical integrity of children
deprived of their liberty, and in its role as guarantor of those rights,
the State has an absolute obligation to provide children deprived of
their liberty with the minimum conditions befitting their dignity as
human beings, for as long as they are deprived of their liberty in a
detention facility.[377]
This obligation is not limited to those situations related to violence
inside the detention facilities; it also includes all the conditions
under which the deprivation of liberty takes place.

519.Under international human
rights law, every person deprived of his or her liberty has the right to
live in detention conditions compatible with his or her personal
dignity, and the State must guarantee to that person the rights to life
and to physical integrity.[378]
This obligation applies equally with respect to children deprived of
their liberty, whom States must provide with the minimum conditions
befitting their dignity so long as they remain in the States’ custody.[379]
Given the special measures of protection to which children are entitled
under Article 19 of the American Convention and Article VII of the
American Declaration, those minimum conditions must offer special care
that enables the child to develop his or her life plan.

520.One of the States’ principal
obligations with respect to the detention conditions concerns the
physical space of the facilities that house juvenile offenders. The
physical space of juvenile detention facilities must ensure respect for
the dignity and health of the children deprived of their liberty,[380]
and must allow development of intervention proposals for assisting those
children, and the formulation and execution of individualized teaching
plans.

521.The Committee on the Rights
of the Child has observed the following on this subject:

Children should be
provided with a physical environment and accommodations which are in
keeping with the rehabilitative aims of residential placement, and due
regard must be given to their needs for privacy, sensory stimuli,
opportunities to associate with their peers, and to participate in
sports, physical exercise, in arts, and leisure time activities[381].

522.Specifically, the facility
in which the child is deprived of his or her liberty must have the
proper infrastructure in terms of surface area, ventilation, natural and
artificial lighting, drinking water and hygienic facilities and
supplies. The children must have easy access to sanitary facilities
that are hygienic and private; they must be permitted to bathe or shower
daily, at a temperature suited to the climate.[382]
Furthermore, the architecture of the detention centers must be suited to
the socio-educational goal. It is essential that there be proper space
for individual and group work, for study, recreation and sports,
adequate conditions for relaxation and family visits, and other
conditions. As the Inter-American Commission has observed, States must
also make public and periodically update the number of places available
in each institution and its real occupancy rate; overcrowding must be
prohibited by law.[383]

523.As guarantors, States must
also “design and apply a prison policy to prevent crises.”[384]
Juvenile detention centers must take all security, evacuation and
emergency measures necessary to safeguard the rights of the children
deprived of their liberty. For example, these centers have to be
outfitted with fire alarms and fire extinguishers in the event of an
emergency, and guards must be properly instructed in how to react in
situations that could pose a threat to the fundamental rights of the
persons in their custody.[385]

524.The foregoing
notwithstanding, the information the Commission has received indicates
that many juvenile detention facilities are not adequately ventilated,
do not have proper lighting, the floors and walls are in a poor
condition, the facilities are unhygienic, the food and water is poor,
and the necessities for personal hygiene and cleaning are not
provided. The Commission has also been told that in some facilities
the basic furnishings like beds and mattresses are lacking, children
have difficulty making contact with the outside, or getting medical
attention or legal advice.

525.For example, a report done
by Venezuela’s Ombudsman’s Office indicates that health, hygiene and
infrastructure conditions at most socio-educational institutions for
children were extremely poor in general.[386]
According to the information the State supplied in response to the
Commission’s questionnaire, in 2007, that Ombudsman’s Office recorded 4
complaints involving human rights violations at socio-educational
centers, 3 related to the condition of the infrastructure, and one
alleging mistreatment by a “teacher counselor”.

526.UNICEF has observed that in
Chile:

... the infrastructure problems would
basically be a lack or inadequate supply of drinking water or hot water
and, in general, problems in the wet and dry systems. Cleaning supplies
are needed, particularly for the bathrooms and the children’s personal
hygiene (Clorox, detergent, toothpaste, soap and shampoo). A number of
the bathrooms and dormitories inspected are not in compliance with legal
and regulatory standards, either because of structural problems, a lack
of space, a lack of hygiene or a lack of even a modicum of privacy.[387]

527.The information the
Commission received indicates that in Central America, the jails have
children crowded into areas that constitute a clear violation of
privacy; at the juvenile detention facilities in El Salvador, Guatemala,
Honduras and Nicaragua, anywhere from 10 to 30 children can be found in
the same cell. The situation is somewhat better in Costa Rica and
Panama where, according to reports received, cells house between two and
five children.[388]
At the same time, other sources of information, including Panama’s
Ombudsman’s Office, have stated that the system is on the verge of
collapse, since the overcrowding and deplorable conditions at six of
Panama’s centers invite conflict and violence among the children
deprived of their liberty there.[389]

528.It is worth noting that in
the 2010 recommendations of the Committee on the Rights of the Child in
connection with the administration of juvenile justice, the Committee
welcomed the fact that in Guatemala, the Comprehensive Child and
Adolescent Protection Act (known as the PINA Act) establishes special
courts for children in conflict with the law. It was nonetheless
concerned at, inter alia, the large number of adolescents in
detention centers, and at the information received to the effect that
offences against property are the main reason for detention; the serious
overcrowding and the lack of care and reintegration programs in the
detention centers; the insufficient and undertrained staff in detention
centers; and the absence of internal and external controls on the
detention centers.[390]

529.In the case of Nicaragua,
the Commission has learned that:

Even though almost 10 years have passed
since the Child and Adolescent Statute entered into force, the physical
conditions of the cells in all prisons nationwide are still such that
children deprived of their liberty are not being guaranteed proper
conditions of space, ventilation, lighting and hygiene, befitting their
dignity as human beings. The visits made by the Special Prosecutor for
Jails and the Office of the Special Prosecutor for Children and
Adolescents found overcrowding due to lack of space; constant dampness;
a foul odor; darkness; a lack of ventilation and a lack of natural and
artificial light; a lack of supplies for daily cleaning and disinfection
of the area; and a lack of hygienic services that guarantee privacy.[391]

530.The information the
Commission has received suggests that because of the overcrowding and
deplorable conditions at the juvenile detention facilities, the risks of
fire and other catastrophes are much higher. For example, in Armadale,
Jamaica, the Girls’ Correctional Center had a fire in May 2009 that
claimed the lives of seven girls. That same year, a boy died in a fire
at Saint Lucia’s Boys’ Training Center.

531.The information the
Commission has received indicates that the unhealthy detention
conditions are even worse for some children deprived of their liberty,

such as children alleged to be members of, or affiliated with, maras
or gangs. For example, the Commission learned that:

... the youth continue
to face serious problems. For example, the MS gang does not have access
to sanitary installations, forcing them to take care of their bodily
functions using plastic bags. The water is not drinkable and has a dark
yellow color.[392]

532.During the visits the
Commission made to prepare for this report, it learned that overcrowding
exists at most of the juvenile detention centers in the region. In
Haiti, for example, the Delmas 33 juvenile detention center has a
capacity for 72 children, but was housing 174. According to what the
Commission was told, the excessive overcrowding also brings added
pressure to bear on the staff of the institutions and forces them to
resort to more repressive measures in order to maintain control.
Moreover, because of the concern over concealed weapons and contraband
substances, the doors to the bathrooms have been removed and the shower
curtains have been taken down, which means that the children have no
privacy.

533.The situation is even worse
for children incarcerated in adult prisons. According to the
information it gathered during its visits, the prison at Gonaïves, which
is an adult facility, has a capacity for 75 inmates, but is currently
housing 306, 33 of whom are minors. According to what the Commission was
told, these children have to sleep between the adults’ legs because
there are not enough mattresses. Some adult prisons where children are
being held do not have bathrooms; buckets are used instead.

534.Another issue that must be
addressed is that juvenile detention facilities have to be outfitted to
accommodate children with special physical needs. The information the
Commission received indicates that most juvenile detention centers do
not have proper facilities to accommodate children with physical
disabilities. In a few rare cases, like Argentina, the Commission was
told that special treatment is provided to children with physical
disabilities who are deprived of their liberty. However, the IACHR
observed that as a rule, these institutions are not prepared to
adequately cope with these special needs children, which often means
that they are sent elsewhere. The Commission feels strongly that
disabled children who are deprived of their liberty must all be housed
in the same institutions, ones adapted to their special needs; only when
this cannot be done, should they be sent to specialized institutions.

535.The Commission observes that
a close corollary of the State’s obligation to provide adequate physical
space for children in detention is its obligation to prevent acts of
violence. Here, it is worth recalling that:

Overcrowding and squalid conditions,
societal stigmatization and discrimination, and poorly trained staff
heighten the risk of violence. Effective complaints, monitoring and
inspection mechanisms, and adequate government regulation and oversight
are frequently absent. Not all perpetrators are held accountable,
creating a culture of impunity and tolerance of violence against
children. The impact of institutionalization goes beyond the experience
by children of violence. Long-term effects can include severe
developmental delays, disability, irreversible psychological damage, and
increased rates of suicide and recidivism.[393]

536.The Commission observes that
beyond the actual violence and excessive force inflicted by personnel,
the environment in which the child is detained is a form of structural
violence, as it goes against the system’s very purpose, breeds further
deterioration and seriously jeopardizes the child’s chances of social
reintegration upon release. The State’s efforts must target the
eradication of violence, both in terms of avoiding situations that
directly involve a violation of a detained child’s physical integrity,
regardless of the perpetrator, and in terms of eliminating the
structural violence that is a product of the conditions in which the
child is being held.[394]

537.Transferring sick children
in handcuffs, mock executions, constant night visits to terrify and
humiliate the child, threats, physical and mental mistreatment, and
various forms of torture or cruel, inhuman and degrading treatment are
just some of the forms of violence denounced in multiple reports that
recount violations of the rights of children deprived of their liberty
in the hemisphere. The episodes of torture are of various kinds: using
hoods, forcing a child’s head underwater, electric shocks, sexual abuse
and rape, and others.

538.For example, in some States
like Costa Rica, the information received indicates that 41.5% of
children deprived of their liberty say they have been mistreated; of
these, 44.4% blame the guards, 5.5% blame the administrative personnel,
and 27.7% blame other detained children.[395]
In the case of Brazil, the IACHR received information indicating that it
identified 5,400 children as individual victims of torture, involving
bodily injuries and death.[396]
When answering the questionnaire, a number of States even admitted that
conflicts between staff and the detained children resulted in physical
injuries, not just to the children but to staff as well.

539.The risk of violence is
obvious, given the conditions under which children and adolescents are
deprived of their liberty in the hemisphere. The situation is even
worse in the case of girls, which means that the gender dimension of
violence in the juvenile justice system has to be considered.[397]
Thus, for example, the information the Commission received concerning
the United States indicates that one of the most disturbing abuses is
the use of inappropriate or excessive force against girls by staff of
the detention centers. The reports make reference to one of the most
troubling abuses, described as

... the excessive use of a forcible
face-down “restraint” procedure intended for emergencies but in fact
used far more often. In a restraint, staff seize a girl from behind and,
in a face-down posture, push her head and entire body to the floor. They
then pull her arms up behind her and hold or handcuff them. We found
that the procedure is used against girls as young as 12 and that it
frequently results in facial abrasions and other injuries, and even
broken limbs ..., all girls are bound in some combination of handcuffs,
leg shackles, and leather restraint belts any time they leave the
facility. Girls are also subject to frequent strip-searches in which
they must undress in front of a staff person and submit to a thorough
visual inspection including their genitals.[398]

540.The Commission has already
learned of the peer violence that occurs inside the juvenile
facilities. This happens in almost every country of the region and has
become particularly pronounced in some Central American countries
because some juvenile offenders belong to gangs. For example, in its
response to the question about how many children deprived of liberty
had, over a 12-month period, sustained injuries caused by third parties,
Guatemala answered that, in 2007, 15 children had sustained (light and
serious) injuries in gang fights. As for the situation in Honduras,
there are reports that in the juvenile detention facilities “there are
often conflicts between children and adolescents who have no gang
affiliation and gang members, provoking intense aggression between these
groups.”[399]

541.The information that the
Commission has available indicates that sometimes there are no
contingency plans or preventive mechanisms in place to deal with
violence, with the result that when fighting or prison riots break out,
the police or specialized or militarized law enforcement bodies are
brought in, and launch extremely violent operations. The IACHR would
again point out that interventions of this type are not a proper
response, because law enforcement bodies are not trained to deal with
incarcerated children.[400]

542.The IACHR observes that
violence prevention plans must feature systematic and continual training
of the staff assigned to the juvenile justice system, especially those
who have direct contact with children.[401]
The rule that expressly prohibits the carrying and use of weapons[402]
by personnel in any facility where children are detained, is an
obligation requiring unqualified compliance on the States’ part. States
also have an obligation to take measures to ensure that no type of
weapon is inside the detention center, including knives fashioned by the
detained children themselves; such weapons have to be confiscated.
Accordingly, the States must employ such methods as metal detectors to
prevent knives, firearms and home-made weapons from getting into the
facility, as these can add to the incidence of violence in juvenile
detention facilities.[403]
The staff of the facilities must respect the children’s dignity in all
search and seizure procedures.

543.Another measure to prevent
violence is to require the detained children to undergo a medical
check-up upon arrival. Rule 50 of the Havana Rules reads as follows:

Every juvenile has a right to be examined
by a physician immediately upon admission to a detention facility, for
the purpose of recording any evidence of prior ill-treatment and
identifying any physical or mental condition requiring medical attention[404].

544.From the information the
Commission has obtained, upon arrival, regular medical examinations of
children deprived of their liberty do not appear to be routine.[405]
The Committee on the Rights of the Child has specifically recommended to
certain States like Nicaragua to “introduce regular medical examination
of children by independent medical staff.”[406]
Most countries in the Eastern Caribbean do not have medical personnel
present to check a child’s health when admitted to the institution. In
the countries of the Western Caribbean, children are generally seen by a
nurse or the medical staff at the facilities at the time the child is
admitted; however this tends to make the child even more vulnerable to
mistreatment and abuse by facility personnel, since in such cases they
are not likely to receive immediate medical attention.[407]

545.The IACHR shares the concern
expressed by the Committee on the Rights of the Child regarding the
administration of juvenile justice in Honduras, especially given the
poor detention conditions, which persist despite recent improvements in
juvenile detention centers. These poor conditions in juvenile
facilities include: overcrowding; a lack of medical and psychological
services; a lack of sanitation; reports of consistent violations of the
right to life of children deprived of their liberty; decisions depriving
children of their liberty which are neither periodically nor
consistently reviewed; a lack of access to reintegration programs during
or after the period of deprivation of liberty for the majority of
children; cases of a lack of segregation of accused children awaiting
trial from persons already convicted.[408]

546.In the final analysis,
overcrowding and the deplorable conditions under which the deprivation
of liberty takes place and the inadequate staff training increase the
risk of violence and human rights violations against children deprived
of their liberty. In some cases, the violence is perpetrated by the
staff and the authorities at the juvenile detention facility. But it
may also be perpetrated by other children deprived of their liberty
there. The Commission reiterates that the State is responsible for
preventing, investigating, punishing and redressing this violence,
irrespective of whether it was caused by its own personnel or by third
parties.

547.One issue that the
Commission must address, because it is so common within the juvenile
justice system, is the disciplinary sanctions imposed on children
deprived of their liberty. The Commission observes that, under certain
circumstances, and within specific limits, the use of disciplinary
sanctions may be permissible and even necessary, especially in order to
prevent something worse.

548.At the same time, the
Commission must again point out that any measures that involve cruel,
inhuman or degrading treatment and corporal punishment[409]
are prohibited, as are confinement in a dark, closed or solitary cell,
the reduction of food, a restriction or denial of the detained child’s
contact with family members, or any measure that jeopardizes his or her
physical or mental health.[410]
Any collective sanctions and multiple sanctions for the same offense
must be strictly prohibited.[411]

All disciplinary
measures constituting cruel, inhuman or degrading treatment shall be
strictly prohibited, including corporal punishment, placement in a dark
cell, closed or solitary confinement or any other punishment that may
compromise the physical or mental health of the juvenile concerned. The
reduction of diet and the restriction or denial of contact with family
members should be prohibited for any purpose. Labour should always be
viewed as an educational tool and a means of promoting the self-respect
of the juvenile in preparing him or her for return to the community and
should not be imposed as a disciplinary sanction. No juvenile should be
sanctioned more than once for the same disciplinary infraction.
Collective sanctions should be prohibited.

Legislation or
regulations adopted by the competent administrative authority should
establish norms concerning the following, taking full account of the
fundamental characteristics, needs and rights of juveniles: (a) Conduct
constituting a disciplinary offence; (b) Type and duration of
disciplinary sanctions that may be inflicted; (c) The authority
competent to impose such sanctions; (d) The authority competent to
consider appeals.

550.Disciplinary measures must
also observe the principles of strict legality, legal definition or
criminalization of the offense (tipicidad), due process,[412]
unbiased enforcement, use of objective criteria and the possibility of
judicial review.[413]
These principles and guarantees must also be observed in that phase of
the process in which disciplinary sanctions are enforced. Children
accused of disciplinary infractions must be informed of the nature of
the charge against them without delay and in a manner they can
understand. They are also entitled to the time and conditions necessary
to articulate their defense, and may resort to the assistance of an
attorney or their family, whichever is appropriate.[414]

551.Corporal punishment is not
only prohibited as a form of punishment for children who violate
criminal laws; it is also prohibited as a disciplinary measure applied
to children serving custodial sentences. The IACHR has established that
corporal punishment is an inhuman and degrading punishment that violates
Article 5 of the American Convention. In its report on corporal
punishment and human rights of children and adolescents, the IACHR
addressed the matter of corporal punishment at length and unreservedly
stated that:

States are obliged to eradicate the use of
corporal punishment as a way of disciplining children and adolescents in
all areas of their lives[415].

552.The IACHR also emphasized
that:

… in accordance with the established
doctrine as applicable to children, which is based on their needs and
the principle of their best interests, States are obliged to “adopt all
positive measures required to ensure the protection of children against
mistreatment corporal punishment and other forms of violence, whether in
their relations with public authorities or in relations among
individuals or with non-governmental entities” in order to ensure them
the full exercise and enjoyment of their rights[416].

553.For its part, the Committee
on the Rights of the Child has observed that corporal punishment:

… directly conflicts
with the equal and inalienable rights of children to respect for their
human dignity and physical integrity[417].

554.As for solitary confinement
as a disciplinary sanction, the Commission was very clear when it stated
that States have an obligation to prohibit, by express legal provisions:

It shall be strictly forbidden to impose
solitary confinement to pregnant women; mothers who are living with
their children in the place of deprivation of liberty; and children
deprived of liberty[418].

555.The Committee on the Rights
of the Child has also addressed the matter of disciplinary proceedings
by establishing that:

Any disciplinary
measure must be consistent with upholding the inherent dignity of the
juvenile and the fundamental objectives of institutional care;
disciplinary measures in violation of article 37 of CRC must be strictly
forbidden, including corporal punishment, placement in a dark cell,
closed or solitary confinement, or any other punishment that may
compromise the physical or mental health or well-being of the child
concerned[419].

556.Although these prohibitions
and the limits on the disciplinary sanctions that can be imposed on
children deprived of their liberty are clear, the Commission has
received information to the effect that solitary confinement and
corporal punishment continue to be used within the region. The
Commission is very troubled by the fact that such practices still exist,
as they violate the child’s human rights. It is surprised by the fact
that these measures are explicitly contemplated in some legislation of
certain countries of the region.

34. (1) Any boy
sentenced or ordered to be detained in a School who escapes therefrom
may at any time before the expiration of his period of detention be
apprehended without warrant, and if the Principal of the School think
fit, but not otherwise, may, any other Act to the contrary
notwithstanding, be then brought before a magistrate of the district in
which he is found or in which the School is situated.

(2) The boy shall
thereupon be liable on summary conviction to be whipped, not exceeding
twelve stripes in the case of a boy whose age does not exceed sixteen
and twenty-four stripes in the case of a boy whose age exceeds sixteen,
with a rod, and he shall be brought back to the School there to be
detained during a period equal to so much of his period of detention as
remained unexpired at the time of his escaping.

558.Rule 52 of Belize’s prison
regulations authorizes visiting judges to order confinement in a cell,
on a restricted diet for a period of no more than 28 days, as a
disciplinary punishment for certain types of behavior. This period of
confinement does not count toward the child’s sentence of incarceration.

559.The Commission observes that
corporal punishment and disciplinary measures involving confinement have
not been abolished in the vast majority of the member States. Even in
those places where they are prohibited, they continue to be practiced.
For example, although Article 45 of Chile’s Law 20,084 prohibits
“disciplinary measures involving corporal punishment, confinement to a
dark or closed cell, or solitary confinement, as well as any other
measure that can endanger the child’s physical or mental health or that
is cruel, degrading or inhuman,”[420]
civil society organizations have said that one form of cruel, inhuman
and degrading treatment that has been a source of constant concern in
the country is the use of “isolation cells”.[421]
In general, confinement in isolation is used as a disciplinary measure
against those who violate the disciplinary rules of the facility.

560.According to information
reported to the IACHR, at one of Chile’s juvenile detention facilities,
the Comunidad Tiempo Joven¸ an entire house –number five- has
long been used to place children in solitary confinement. It reportedly
consists of two separate concrete cells, two meters by two meters in
size, with an iron door and a window measuring twenty centimeters by
twenty centimeters; the cells are dark and the window is covered with
cardboard from the outside; it has a unpleasant odor; neither cell has a
bathroom and the bed is small and pressed against the wall.[422]

561.Something similar happens in
the case of Colombia. In its response to the Commission’s
questionnaire, Colombia identified the following as the prohibited
disciplinary measures: isolation in dark cells, incommunicado
detention, withholding of food, denial of sleep at night, physical
punishment, collective punishments and working for the establishment.
Nevertheless, the Office of the Colombian Ombudsman has confirmed that
one of the disciplinary measures used on children is isolation in what
are called the “reflection rooms”. According to the description
supplied by the Ombudman’s Office, these are small, dark and damp rooms
with no bathroom; girls and boys alike have to sleep on the floor.[423]
Despite being called “reflection rooms”, it is obvious to the Commission
that these are solitary confinement cells used for disciplinary reasons,
in violation of the domestic and international laws prohibiting this
disciplinary measure in the case of children.

562.During the Commission’s
visits to prepare this report, officials at the Wagner Boys Facility in
Belize said that children could be kept in the isolation cell for a
week, during which time they were not allowed any physical activity.
They stressed, however, that during that time they were removed from the
cell for 30 to 45 minutes a day for psychological counseling. At the
Opa Doeli facility in Suriname, the isolation cell was used to confine a
child having suicidal thoughts, so that staff could keep the child under
surveillance. The Commission must emphasize that problems of this kind
need to be addressed through proper psychological treatment, but never
by compounding the punishment through added sanctions that are,
moreover, prohibited under international human rights law.

563.The information the
Commission received suggests that in a number of countries, the rules
regulating discipline in juvenile detention facilities allow restriction
of freedom of movement in punishment cells; there are cases where
isolation is permitted for between eight and 15 days. States routinely
use euphemisms to refer to the punishment of isolation. As already
examined, in Colombia the isolations cells are referred to as
“reflection rooms”; in the Dominican Republic, reference is made to
“temporary transfer to a reflection room;” in Chile, the expression is
“separation from the group”, whereas in Mexico the expression used is
“referral to retreat areas”. Only in Ecuador do the existing
regulations dispense with euphemisms and refer to the practice as
“isolation punishment”. But no matter what the practice is called, the
Commission must once again assert that the rules of international human
rights law absolutely prohibit punishments of this kind.

564.As the Commission previously
observed, corporal punishment is another disciplinary measure commonly
used to punish children deprived of their liberty in the region, despite
the fact that it is prohibited under international law.

565.By way of example, the
Bolivian Ombudsman’s Office observed that on April 22, 2009, three
children were placed in the Juvenile Offenders Center at Av. Cap.
Ustariz Km at Quillacollo. According to this report, as soon as the boys
were admitted, they were subjected to unwarranted punishments that could
only be classified as torture. To begin with, the boys’ heads were
shaved and they were forced to endure corporal punishment that violated
their physical integrity, such as running an obstacle course for
approximately an hour, repeated spinning and jumping on the ground,
while being beaten with a stick on the abdomen and elsewhere on the
body. Thanks to the intervention of the Ombudsman’s Office, the boys
who had been subjected to torture and physical mistreatment were
released. Forensic medical certificates were issued, and the civil
servants charged with security at the center and the other authorities
involved were replaced.[424]

566.Something similar happens in
Jamaica, where the Office of the Children’s Advocate has said that the
most common complaints against correctional institutions involve
physical abuse.[425]
According to the information the Commission received, in Jamaica,
corporal punishment normally implies flogging, although other forms of
cruel and inhuman punishment are also used, such as incommunicado
detention, diet restrictions and the use of restraints. The Commission
has also learned that at Trinidad and Tobago’s Youth Training Center,
guards may, with a physician’s approval, put children deprived of their
liberty on a diet of bread and water for three days, followed by a
normal diet for three days, and then the bread-and-water diet for three
more days.

567.During the Commission’s
visits to a number of Caribbean countries to compile information for
this report, officials at the juvenile detention facilities admitted
that from time to time they resorted to corporal punishment because they
had no information about any other forms of discipline. This, despite
the fact that all the facilities use a disciplinary system that involves
withdrawing privileges, including family visits.

568.In addition to solitary
confinement and corporal punishment, from the information it compiled,
the Commission learned that the disciplinary regimes in force in the
member States allow for a wide range of punishments, many of which are
impermissible in the case of children. The punishments contained in
these rules include verbal and written reprimands and admonitions,
increasing a child’s work by as many as 15 days, reducing the time for
recreational activities (also for up to 15 days), suspending family
visits four or five times, cancelling leave granted to visit one’s
family and being in contact with one’s community, and others.

569.The Commission is struck by
the fact that precise descriptions of the misconduct that will warrant
disciplinary measures are uncommon. Indeed, the information available
suggests that in most States, the disciplinary measures are imposed on
the basis of broad categories, allowing the authorities to exercise a
very large degree of discretion. Such examples are: failing to comply
with the rules or to perform one’s duties, violating prohibitions,
disrupting order, failure to respect authority, upsetting the normal
routine at the institution, failing to respect the order of activities,
and others. The Commission considers that such generic descriptions make
it difficult for the children to know and comprehend the prohibited
types of behavior and the possible penalties they may face, paving the
way for violations of the juvenile offenders’ right to due process.

570.In this sense, in addition
to an express prohibition on corporal punishment, solitary confinement,
restriction of family visits, measures calculated to humiliate the
child, and any type of punishment that violates the rights of the
detained children, the Commission is also recommending that the States
establish laws guaranteeing due process when applying disciplinary
measures while a child is serving a custodial sentence. Furthermore, in
the Commission’s opinion, these legislative measures must be coupled
with preventive policies, such as staffing centers with technical and
security personnel specialized in, and trained to work with, children.
It also recommends that they prepare handbooks and protocols for
security personnel to ensure that the facilities are properly controlled
and that the life and physical integrity of the children are not in
jeopardy. In general, for the Commission, disciplinary measures will be
justified so long as they are established by law, pursue a legitimate
end that serves the best interests of the child and the objectives of
the juvenile justice system, and are appropriate, necessary and
proportional.

571.Inasmuch as the ultimate
goal of the juvenile justice system is to enable the child in conflict
with the law to return to his or her family and community, States must
establish programs and services to achieve that end. Rule 79 of the
Havana Rules provides that:

All juveniles should
benefit from arrangements designed to assist them in returning to
society, family life, education or employment after release. Procedures,
including early release, and special courses should be devised to this
end.

572.Rule 80 of that same
instrument provides that:

Competent authorities
should provide or ensure services to assist juveniles in re-establishing
themselves in society and to lessen prejudice against such juveniles.
These services should ensure, to the extent possible, that the juvenile
is provided with suitable residence, employment, clothing, and
sufficient means to maintain himself or herself upon release in order to
facilitate successful reintegration. The representatives of agencies
providing such services should be consulted and should have access to
juveniles while detained, with a view to assisting them in their return
to the community.

573.As part of their juvenile
justice systems, States have an obligation to establish services to make
it easier for children deprived of their liberty to rejoin their
community. These services must be available to all children who are
regaining their freedom, whether through early release programs, parole,
or upon completion of their sentence. States must provide adequate
funding for those services so that they can be effective.

574.These services and programs
must be tailored to the age and particular needs of each child, and must
plan ways to include the family and the community to which the child
belongs. For children who have no family, or whose family is unable to
support them, child protection services should be ready to step in to
offer the support that will enable these children to provide for their
social and economic needs. Children who are on the verge of attaining
their adulthood, or who have already attained it, may require guidance
to enroll in educational or vocational training programs, and support to
obtain housing, a job and connect with other resources in the community.
During the visits that the Commission made in preparation for this
report, it learned of some best practices, as in the case of Jamaica,
where children are provided with subsidies for their rehabilitation, to
enable them to attend school once they leave the institution, pay rent
or undertake a small revenue-producing project.

575.While these support programs
should be available to all children who have been released, it is
important to point out that reintegration into the community ought not
to begin when the child is released; instead, as this report has
repeatedly stated, reintegration is a process that should begin as soon
as the child is sentenced and continue to be implemented the entire time
that the child is serving his or her sentence.

576.The Commission observes that
some programs in the region are conducted while the child is serving his
or her custodial sentence, and are designed to ensure that the child has
an opportunity to return to his or her community. For example,
re-integration permits are a common practice allowing the child to leave
the institution to participate in educational, rehabilitative or job
opportunity activities in the community. Children are also permitted to
spend holidays or time at home for humanitarian considerations. These
re-integration permits can be for several days or several hours per
day. Programs of this type facilitate the children's reintegration by
allowing them to have extended contract with the family and community by
means of prolonged visits.

577.The Commission notes that,
save in the case of parole, participation in community re-assimilation
programs must be on a voluntary basis, and a child’s non-participation
in these programs must not have punitive consequences.

578.The IACHR also believes it
best that these programs be conducted by State agencies in charge of
social policy, but not agencies associated with the juvenile justice
system.

579.Any program or service whose
purpose is to assist children deprived of their liberty with their
re-assimilation into the community must make every effort to fight the
discrimination and stigmatization that these children tend to suffer for
having been offenders. Therefore, it is imperative that States adopt
and effectively enforce and comply with laws ensuring the
confidentiality of the records of children either accused or convicted
of violating criminal law, and must also prohibit these records from
being used in future proceedings against that person, even when he or
she is an adult.[426]
The Commission is troubled by the fact that in most States in the
region, a child’s personal data on record in the juvenile justice system
are not automatically expunged once that child turns 18, and the
discrimination against the child follows the child into adult life.

580.Here, the Committee on the
Rights of the Child has recommended that the States Parties:

... introduce rules
which would allow for an automatic removal from the criminal records of
the name of the child who committed an offence upon reaching the age of
18, or for certain limited, serious offences where removal is possible
at the request of the child, if necessary under certain conditions (e.g.
not having committed an offence within two years after the last
conviction)[427].

581.The information that the
Commission obtained concerning implementation of post-release services
and programs for juvenile offenders, suggests that few such services are
available in the region. Many of the States that answered the
Commission’s questionnaire stated that they had no data or information
on this point. Some, like the Dominican Republic, Chile or Costa Rica,
expressly acknowledged that at that time there were no programs of this
type. Costa Rica explained that even though there are no such programs,
the children do receive support when they apply for it. The lack of
post-release follow-up programs is a matter of great concern to the
Commission.

582.One exception is Jamaica,
where 100% of the children released are automatically enrolled in
post-release programs to track their reintegration into the community.
This is in large part due to the fact that Jamaica has a law under which
children who complete their correctional order before turning 18 years
of age must undergo a period of supervision.

583.In its answer to the
questionnaire, Colombia asserted that post-release services are offered,
such as arrangement of identification papers, civil registration,
assistance in enrolling in the formal educational system, or joining the
job market, the search for fellowships for technical careers, and
others. In its reply to the questionnaire, Mexico observed that 1,087
children out of the total released in the last 12 months (3,437) had
received the benefit of technical follow-up, but did not explain the
make-up of that program. In its response to the questionnaire,
Venezuela observed that no figures were available, but that the method
used to prepare children for release had succeeded in establishing
associations with community organizations to help in the children’s
re-socialization.

584.The Commission must
emphasize that the States’ juvenile justice systems need to establish
post-release follow-up and support mechanisms as part of their
obligation to ensure that the sentences imposed on children accomplish
the purposes they were intended to serve.

[245]
Committee on the Rights of the Child, General Comment No. 10,
Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007,
para. 68.

[246]
In Costa Rica, a total of 231 sentences were handed out in 2007; 194
of the sentences were non-custodial measures and 37 involved the
deprivation of liberty (DNI, Diagnóstico regional sobre las
condiciones de detención de las personas adolescentes en las cárceles
de Centroamérica Regional study on detention conditions for
adolescents in Central American prisons, 2009). Available at:
http://viasalternas.dnicostarica.org/v2/documentos/633893876330375000.pdf.

[249]
The Beijing Rules, Rule 17.1.b) states that “Restrictions on the
personal liberty of the juvenile shall be imposed only after careful
consideration and shall be limited to the possible minimum”.

[250]
IACHR, Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the Americas. Document Approved by the
Commission during its 131st regular period of sessions,
held from March 3-14, 2008.

[251]
Report of the independent expert for the United Nations study on
violence against children, August 29, 2006, A/61/299, para. 112.

[255]
Committee on the Rights of the Child, General Comment No. 10,
Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007,
para. 11.

[256]
There is a difference between the “proportionality of the sentence”
and the “proportionality principles” within the test to control
arbitrary restrictions referred to by the I/A Court H.R. While the
first principle justifies the rationality of the sentence in relation
with the severity of the conduct that is penalized, for the I/A Court
H.R., the principle of proportionality as a control on arbitrary
restrictions constitutes a three-stage test to determine if the
restriction could be considered as "necessary in a democratic
society". See the Case of Tristan Donoso v. Panama. Judgment
of January 27, 2009, Series C. No.193, para. 56. After examining the
appropriateness and the necessity of the measure, at the
proportionality phase, there must be a check as to whether "the
sacrifice inherent in the restriction of the right to liberty is not
exaggerated or excessive compared to the advantages obtained from this
restriction and the achievement of the purpose sought." Case of Chaparro-Álvarez
and Lapo-Íñiguez. v. Ecuador,
Judgment of November 21, 2007, Series C, No. 170, para. 93.

[262]
The report of the Michigan American Civil Liberties Union, titled
“Second Chances: Juveniles Serving Life without Parole in Michigan
Prisons”, published in 2004, cites a number of cases of children who
received sentences equal to or longer than their adult co-defendants.

[263]
Michele Deitch, et al, From Time Out to Hard Time: Young Children
in the Criminal Justice System, Austin Texas: University of Texas
at Austin, LBJ School of Public Affairs, p. 38. Available at:
http://www.utexas.edu/lbj/news/story/856/.

[264]
Section 190.5(b) of the California Penal Code states that the penalty
for murder with special circumstances committed by a minor of 16 to 17
is life in prison without the possibility of parole.

[265]
Under Section 190.2(a)(22) of the California Penal Code, a gang murder
can be construed as a murder with special circumstances, which carries
a presumptive punishment of life without parole. Cited in: Human
Rights Watch, When I Die, They’ll Send Me Home: Youth Sentenced to
Life Without Parole in California, January 2008, p. 33. Available
at:
http://www.hrw.org/en/reports/2008/01/13/when-i-die-they-ll-send-me-home.

[266]
Human Rights Watch, When I Die, They’ll Send Me Home: Youth
Sentenced to Life Without Parole in California, January 2008, p.
22. Available at:
http://www.hrw.org/en/reports/2008/01/13/when-i-die-they-ll-send-me-home.

[267]
Committee on the Rights of the Child, General Comment No. 10,
Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007,
para. 77.

[268]
Committee on the Rights of the Child, General Comment No. 10,
Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007,
para. 77.

[269]
Criminal Code of Saint Vincent and the Grenadines, Chapter 124,
Section 24, cited in the report from the State to the Committee on The
Rights of the Child, Consideration of Reports submitted by States
Parties under Article 44 of the Convention, Concluding observations on
Saint Vincent and the Grenadines, October 10, 2002, Document
CRC/C/28/Add.18.

[271]
“The Committee on the Rights of the Child is deeply concerned about
the fact that children as young as 9 years of age can be sentenced to
life imprisonment without provision for parole”. Also, the Committee
noted that “As regards life imprisonment of children without provision
for parole, to urgently review its domestic legislation, particularly
the provisions of the Indictable Procedures Act (chapter 96 of the
Laws of Belize) and the Court of Appeal Act (chapter 90 of the Laws of
Belize), in order to bring its domestic laws into full conformity with
the provisions and principles of the Convention” Committee on The
Rights of the Child, Consideration of Reports submitted by States
Parties under Article 44 of the Convention, Concluding observations:
Belize, CRC/C/15/Add/252, 31 March 2005, paras. 70. and 71(c).

[272]
The Committee was deeply concerned that “the sentence of life
imprisonment is not excluded for persons below the age of 18 years as
stated in the State party report” Committee on The Rights of the
Child, Consideration of Reports submitted by States Parties under
Article 44 of the Convention, Concluding observations: Saint Lucia,
CRC/C/15/Add.258, 21 September 2005, para. 72.

[273]
Information supplied by the Commission by the Global Initiative to End
All Corporal Punishment of Children.

[275]
In para. 68 of its 2004 Concluding Observations regarding Antigua and
Barbuda, the Committee on the Rights of the Child expressed concern
over “the possibility that a person under 18 years can be sentenced to
life imprisonment for murder.” The Committee also observed that
“Persons under 18 years of age can be sent to prison, possibly for
life, for murder or treason, since, by the State party’s own
admission, the law does not stipulate the length of such
incarceration.” Committee on The Rights of the Child, Consideration of
Reports submitted by States Parties under Article 44 of the
Convention, Concluding observations: Antigua and Barbuda,
CRC/C/15/Add.247, November 3, 2004, para. 68.

[276]
Section 14 of Chapter 138 of Barbados’ Juvenile Offenders Act provides
that “The sentence of death shall not be pronounced on or
recorded against a person convicted of an offence if it
appears to the court that at the time when the offence was
committed he was under the age of 18 years; but in lieu
thereof the court shall, notwithstanding anything in this or
in any other Act, sentence him to be detained during Her
Majesty’s pleasure, and if so sentenced, he shall be liable to be
detained in such place and under such conditions as the
Governor-General may direct and whilst so detained shall be
deemed to be in legal custody".

[277]Section
3(1)(b) of Chapter 10:31 of Dominica’s Offences against the Person Act
states that a person
convicted of murder when he was under the age of 18 years shall not
have the sentence of death pronounced or recorded against him. The
individual would instead be detained in such a place and under such
conditions as the President may direct.

[287]See, Convention on the Rights of the Child, Article 37(c); The
Havana Rules, Rules 32 and 60; The Beijing Rules, Rule 26.5; Economic
and Social Council, Resolution 1997/30, 36th plenary
meeting, Administration of juvenile justice, Annex
Guidelines for action on children
in the criminal justice system, of July 21, 1997,
Guideline 20.

[289]
Committee on the Rights of the Child, General Comment No. 10,
Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007,
paras. 87 and 90.

[290]
The Beijing Rules, Rule 25.1. See also European Rules for
juvenile offenders subject to sanctions or measures, para. 53.5:

Juvenile
institutions shall be located in places that are easy to access and
facilitate contact between the juveniles and their families. They
should be established and integrated into the social, economic and
cultural environment of the community.

[294]
OMCT – OPCION, Derechos de los niños en Chile Children’s rights
in Chile, Informe Alternativo al Comité de los Derechos del
Niño de las Naciones Unidas sobre la aplicación de la Convención sobre
los Derechos del Niño en Chile Alternative Report to the United
Nations Committee on the Rights of the Child on the application of the
Convention of the Rights of the Child in Chile, 2007.

[295]
IACHR, Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the Americas, document approved by the
Commission at its 131st session, held March 3 to 14, 2008, Principle
XVIII in fine; Havana Rules, Rule 62.

[304]
Michele Deitch, et al, From Time Out to Hard Time: Young Children
in the Criminal Justice System, University of Texas at Austin, LBJ
School of Public Affairs, Austin, 2009, p. xiv. Available at:
http://www.utexas.edu/lbj/news/story/856/.

[312]
Subcommittee on Prevention of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Report on the visit of the
Subcommittee on Prevention of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment to Honduras, CAT/OP/HND/1,
February 10, 2010, para. 239.

[313]
IACHR, Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the Americas, document approved by the
Commission at its 131st session, held March 3 to 14, 2008, Principle
I.

[315]Cf. Standard Minimum Rules for the Treatment of Prisoners,
Adopted by the First United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, held at Geneva in 1955, and
approved by the Economic and Social Council by its resolutions 663 C
(XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, para. 57.

[320]
I/A Court H.R., Matter of the Children Deprived of Liberty in the
“Complexo do Tatuapé” of FEBEM. Provisional Measures. Order of the
Inter-American Court of Human Rights of July 3, 2007, point. 8;
Matter of the Children Deprived of Liberty in the “Complexo do
Tatuapé” of FEBEM. Provisional Measures. Order of the
Inter-American Court of Human Rights of July 4, 2006, point
ten; Case of the “Juvenile Re-education Institute”. Preliminary
Objections, Merits, Reparations, Costs. Judgment of September 2,
2004, Series C No. 112, para. 160.

On admission, all
juveniles shall be given a copy of the rules governing the detention
facility and a written description of their rights and obligations in
a language they can understand, together with the address of the
authorities competent to receive complaints, as well as the address of
public or private agencies and organizations which provide legal
assistance. For those juveniles who are illiterate or who cannot
understand the language in the written form, the information should be
conveyed in a manner enabling full comprehension.

See also IACHR,
Principles and Best Practices on the Protection of Persons Deprived of
Liberty in the Americas, document approved by the Commission at
its 131st regular session, held March 3 to 14, 2008, Principle IX.1
European Rules for juvenile offenders subject to sanctions or
measures, paras. 62.3 and 62.4.

[341]I/A Court H.R., Matter of Yare I and
Yare II Capital Region Penitentiary Center regarding Venezuela,
Provisional Measures, Order of the Inter-American Court of
Human Rights of 30 March 2006, point fourteen;
I/A Court H.R., In the Matter of Monagas
Judicial Confinement Center ("La Pica") regarding Venezuela,
Provisional Measures, Order of the Inter-American Court of
Human Rights of 9 February 2006, point sixteen; Matter of
the Children Deprived of Liberty in the “Complexo do Tatuapé” of
FEBEM. Provisional Measures. Order of the Inter-American Court of
Human Rights of July 4, 2006, point nine and Order of the
Inter-American Court of Human Rights of July, 3 2007, point
seventeen. In the same sense, I/A Court
H.R., Case of the "Juvenile Re-education Institute" v. Paraguay.
Preliminary Objections, Merits, Reparations and Costs. Judgment of
September 2, 2004. Series C No. 112, para. 184.

[343]
Human Rights Council, Civil and Political Rights, including the
Questions of Disappearances and Summary Executions, Report of the
Special Rapporteur on extrajudicial, summary or arbitrary executions,
Philip Alston, A/HRC/4/20/Add.2, 19 February 2007, paras. 38 and 39.

[344]
Rivera Joya, Reina Auxiliadora, Dictamen pericial sobre la
situación de violencia contra los niños y jóvenes en situación de
calle, en conflicto con la Ley y miembros de maras en Honduras y la
cuestión de impunidad que existe en el país con relación a estos
crímenes Expert opinion on the violence against children and
adolescents who live on the street, are in conflict with the law or
are members of maras in Honduras and the impunity in Honduras
with respect to these crimes, pp. 41 and 42. The document is available in Spanish in
the Inter-American Court’s file on the Case of Servellón García et
al., available at:
http://www.corteidh.or.cr/expediente_caso.cfm?id_caso=250.

[345]
Committee on the Rights of the Child, Consideration of Reports
submitted by State Parties under Article 44 of the Convention.
Concluding Observations: El Salvador, CRC/C/SLV/CO/3-4, 17
February 2010, para. 43.

[346]
Committee on the Rights of the Child, Consideration of Reports
submitted by State Parties under Article 44 of the Convention.
Concluding Observations: El Salvador, CRC/C/SLV/CO/3-4, 17
February 2010, para. 87.

[347]
Human Rights Watch, “Real dungeons”, Juvenile Detention in the
State of Rio de Janeiro, December 2004, p. 49.

[352]
See, European Rules for juvenile offenders subject to sanctions or
measures, paras. 68.1 and 68.2.

[353]
IACHR, Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the Americas, document approved by the
Commission at its 131st regular session, held March 3 to 14, 2008,
Principle X.

[354]
I/A Court H.R., Case of the Girls Yean
and Bosico v. Dominican Republic.
Preliminary Objections, Merits, Reparations and Costs, Judgment
of September 8, 2005. Series C No. 130, para. 134. See also: Cf.
United Nations, Committee on the Elimination of Discrimination against
Women, General Recommendations No. 24, approved in the 20th Period of
Sessions, 1999, on the application of Article 12 of the Convention on
the Elimination of Discrimination Against Women, A/54/38/Rev.1 (SUPP),
February, 5, 1999.

[355]
IACHR, Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the Americas, document approved by the
Commission at its 131st regular session, held March 3 to 14, 2008,
Principle X.

[363]
I/A Court H.R.. Case of the Juvenile Re-education Institute v.
Paraguay, Preliminary Objections, Merits, Reparations, Costs.
Judgment of September 2, 2004, Series C No. 112, para. 168. See also:
IACHR, Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the Americas. Document Approved by the
Commission during its 131st regular period of sessions,
held from March 3-14, 2008, principle III.3.

The rights of
juveniles to benefits in respect of education, vocational training,
physical and mental health care, safety and social security shall not
be limited by the imposition or implementation of community sanctions
or measures.

[366]
Convention on the Rights of the Children, article 29.1 b); Committee
on the Rights of the Child, General Comment Nº 1, The aims of
education, CRC/GC/2001/1, 17 April 2001; and General Comment No.
10, Children’s rights in juvenile justice, CRC/C/GC/10, 25
April 2007, para. 13.

[367]
IACHR, Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the Americas. Document Approved by the
Commission during its 131st regular period of sessions,
held from March 3-14, 2008, principle XIII.

[381]
Committee on the Rights of the Child, General Comment No. 10,
Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007,
para. 89.

[382]
European Rules for juvenile offenders subject to sanctions or
measures, paras. 65.2 and 65.3.

[383]
IACHR, Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the Americas. Document Approved by the
Commission during its 131st regular period of sessions,
held from March 3-14, 2008, Principle XVII.

[384]
I/A Court H.R., Matter of Urso Branco Prison regarding Brazil,
Provisional Measures. Order of the Inter-American Court of Human
Rights of July 7, 2004, point number thirteen.

[390]
Committee on The Rights of the Child, Consideration of Reports
submitted by States Parties under Article 44 of the Convention,
Concluding observations: Guatemala, CRC/C/GTM/CO/3-4, October
25, 2010,
para. 98.

[401]
Committee on the Rights of the Child, General Comment No. 10,
Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007,
para. 40.

[402]
Havana Rules, Rule 65; IACHR, Principles and Best Practices on the
Protection of Persons Deprived of Liberty in the Americas. Document
Approved by the Commission during its 131st regular period
of sessions, held from March 3-14, 2008, Principle XXIII.2; United
Nations, Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials, Adopted by the Eighth United Nations Congress
on the Prevention of Crime and the Treatment of Offenders, Havana,
Cuba, 27 August to 7 September 1990; and Code of Conduct for Law
Enforcement Officials, Article 3.

[404]
IACHR, Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the Americas. Document Approved by the
Commission during its 131st regular period of sessions,
held from March 3-14, 2008, principle IX.3.

[406]
Committee on the Rights of the Child, Consideration of Reports
submitted by States Parties under Article 44 of the Convention,
Concluding observations: Nicaragua, CRC/C/15/Add.265, 21 September
2005,
para. 62, d).

[407]
I/A Court H.R., Matter of the Children Deprived of Liberty in the
“Complexo do Tatuapé” of FEBEM. Provisional Measures. Order of the
Inter-American Court of Human Rights of July 4, 2006.

[408]
Committee on The Rights of the Child, Consideration of Reports
submitted by States Parties under Article 44 of the Convention,
Concluding observations: Honduras, CRC/C/HND/CO/3, May 2, 2007,
para. 80.

[409]
General Comment No. 8 of the el Committee on the Rights of the
Children defines corporal punishment as any punishment in which
physical force is used and intended to cause some degree of pain or
discomfort, however light. Committee on the Rights of the Child,
General Comment No. 8, The right of the child to protection from
corporal punishment and other cruel and degrading forms of punishment,
(inter alia, Article 19, Article 28.2 and Article 37) CRC/C/GC/8,
2 March 2007, para. 11.

[410]
Convention on the Rights of the Children, Articles 19 and 37; Havana
Rules, Rules 66 and 67; Beijing Rules, Rule 17.3; Riyadh Guidelines,
guideline 54; and Guidelines for action on children in the criminal
justice system, guideline 18.

[411]
Havana Rules, Rule 67. In relation to the prohibition of collective
punishments: IACHR, Principles and Best Practices on the Protection
of Persons Deprived of Liberty in the Americas. Document Approved
by the Commission during its 131st regular period of
sessions, held from March 3-14, 2008, principle XXII.4.

[412]
Standard Minimum Rules for the Treatment of Prisoners, Adopted by the
First United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, held at Geneva in 1955, and approved by the
Economic and Social Council by its resolutions 663 C (XXIV) of 31 July
1957 and 2076 (LXII) of 13 May 1977, Rule 30.2.

No prisoner shall be
punished unless he has been informed of the offence alleged against
him and given a proper opportunity of presenting his defense. The
competent authority shall conduct a thorough examination of the case.

[413]
IACHR, Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the Americas. Document Approved by the
Commission during its 131st regular period of sessions,
held from March 3-14, 2008, Principle II, in fine and XXII.

[415]
IACHR. Report on Corporal Punishment and Human Rights of Children
and Adolescents, OEA/Ser.L/V/II.135, August 5, 2009, para. 65. In
the same sense: European Rules for juvenile offenders subject to
sanctions of measures, para. 7: “Sanctions or measures shall not
humiliate or degrade the juveniles subject to them.”

[416]
IACHR. Report on Corporal Punishment and Human Rights of Children
and Adolescents, OEA/Ser.L/V/II.135, August 5, 2009, para. 31.

[417]
Committee on the Rights of the Child, General Comment No. 8, The
right of the child to protection from corporal punishment and other
cruel and degrading forms of punishment, (inter alia,
Article 19, Article 28.2 and Article 37), CRC/C/GC/8, 2 March 2007,
para. 21.

[418]
IACHR, Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the Americas. Document Approved by the
Commission during its 131st regular period of sessions,
held from March 3-14, 2008, principle XXII.3.

[419]
Committee on the Rights of the Child, General Comment No. 10,
Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007,
para. 89.

[420]
At the same time, a disciplinary measure consisting of up to five days
in “solitary confinement” is allowed under some rules such as Decree
553 of 2001, which contains the Regulations for the Juvenile Sections
of the Civil Police and Regulations on Juvenile Cases and Care
Facilities, contained in Decree 730 of 1996.

[421]
OMCT – OPCION, Derechos de los niños en Chile Informe Alternativo
al Comité de los Derechos del Niño de las Naciones Unidas sobre la
aplicación de la Convención sobre los Derechos del Niño en Chile,
2007 The Rights of Children in Chile, Alternative Report to the
United Nations Committee on the Rights of the Child concerning
Application of the Convention on the Rights of the Child in Chile,
2007, p. 74.

[423]
OMCT, Apoyo a víctimas pro recuperación emocional, Comisión
Colombiana de Juristas, and the Fundación Comité de Solidaridad
con Presos Políticos, State Violence in Colombia, An Alternative
Report submitted to the United Nations Committee against Torture,
2003, citing the Ombudsman’s Office, Children and Their Rights,
Bulletin No. 6, Bogotá, June 2000, p. 9.

[424]
The details can be accessed in the following site http://www.crin.org/resources/infoDetail.asp?ID=20232&flag=news.

21.1 Records of
juvenile offenders shall be kept strictly confidential and closed to
third parties. Access to such records shall be limited to persons
directly concerned with the disposition of the case at hand or other
duly authorized persons.

21.2 Records of
juvenile offenders shall not be used in adult proceedings in
subsequent cases involving the same offender.

[427]
Committee on the Rights of the Child, General Comment No. 10,
Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007,
para. 67.